Gregory v. Dr. J. W. S. Howell & Co.

118 Iowa 26 | Iowa | 1902

Deemer, J.

Plaintiff, Gregory, made and executed a note for the sum of $100 to.Howell & Go., on or about February 27, 1900, due six months after date. Howell & Go. sold the note, before maturity, to the Bankers’ Investment Company. The note purports to be payable at Dés Moines, Iowa. After the maturity of the note it was placed in the bands of attorneys for collection, and these attorneys gave Gregory notice that they held the note, and should expect payment thereof. At Gregory’s request a firm of attorneys living at his home county, Louisa, wrote the attorneys for the investment company, asking that they send the note to a local bank for inspection. On receipt of this letter the note was forwarded to the defendant the Exchange Bank of Morning Sun, in Louisa county. This was done on the 19th day of September, 1900. On the 27th day of that month, after inspecting the note, and concluding that there had been a material alteration therein, Gregory commenced an action in the district court of Louisa county against all the above-named defendants for the recovery of the note, alleging that the note was obtained through fraud and deceit, was without consideration, and had, after its delivery, been fraudulently altered, by inserting therein a stipulation making the instrument payable at Des Moines, Iowa. Notice of this action was served on the Exchange Bank alone. On September 29th the Bankers’ Investment Company commenced action against the plaintiff herein before a justice of the peace in and for Polk county, Iowa, and notice thereof was served on plaintiff, Gregory. Thereupon Gregory filed an amendment to his petition in the replevin action, asking for a writ of injunction restraining the investment company from prosecuting its action before the justice of the peace of Polk county. A writ was issued as prayed, and defendants other than the Exchange Bank appeared in the district court of Louisa county, and filed a motion to dissolve the injunction, based on the ground that that court had no jurisdiction, and that the note had been fraudulently and wrongfully obtained. They also filed a plea in abatement of the action, wherein practically the same questions were raised as in the motion to dissolve. This motion was overruled, as also was the plea in abatement, and after a hearing on the merits plaintiff was awarded the possession of the note, and the injunction was made perpetual.

Two questions are presented on this appeal. First. Was jurisdiction of the note fraudulently obtained by the Louisa county district court? Second. Did that court have jurisdiction to restrain the investment company from prosecuting its action before the justice of the peace of Folk county? The first is largely a question of fact, and the second one of law. Eegarding the first question, it is sufficient to say, without setting forth the evidence, that we do not think the alleged fraud is established. Plaintiff, through his attorney, asked that the note be seat to a bank in his county, that he might inspect the same; he at that time believing that he had not executed a note to Howell & Co. After seeing the instrument, and finding the signature genuine, but believing that it had been materially altered, he, nearly a week after the note was sent to his local bank, commenced his action of replevin. The evidence negatives the idea that he had the note sent to Louisa county for the purpose of securing jurisdiction thereof. That thought did not seem to enter his mind until after he had discovered the alleged alteration. This was the finding of the district court, and with that conclusion we are content. Walker v. Stone, 70 Iowa, 103. Had the district court of Louisa county power and authority to enjoin defendants from prosecuting the action before the justice of the peace in and for Polk county? Under the allegations and proofs the justice of the peace of Polk county had no jurisdiction, for the reason that the provision of the note giving that court jurisdiction was inserted after the note was executed, and was never consented to by plaintiff. An action of replevin was then pending, wherein defendants herein could have interposed their claim under the note. Smith v. Eals, 81 Iowa, 235; Sigler v. Hidy, 56 Iowa, 504. Courts of equity were instituted largely to relieve against the consequences of fraud, accident, and mistake, and the propriety of confining litigation to the forum in which it is first commenced has repeatedly been recognized in chancery. Butch v. Lash, 4 Iowa, 215. The district court of Louisa county first assumed jurisdiction of this controversy. Its jurisdiction was not obtained by fraud, and it had the right to continue that jurisdiction to the end. Defendants herein, instead of commencing their action before a justice of the peace in and for Polk county, could, as we have said, have litigated every question in the action in Louisa county. Under the allegations contained in the pleadings, it was their duty to do so. Moreover, the clause in the contract giving the Polk county courts jurisdiction was, according to the evidence, inserted through fraud or by mistake, and this of itself warranted the proceedings adopted in this case. See Field v. Cory, 7 N. J. Eq. 574; Dale v. Roosevelt, 5 Johns. Ch. 174; Sacket v. Hillhouse, 5 Day, 551; 1 Teager v. Landsley, 69 Iowa, 725. The judgment granting plaintiff the possession of the noto and permanently enjoining defendants from prosecuting their action in Polk county is not complained of. This is not such a proceeding as is contemplated by section 4334 of the Code; and, if it were, it could not have been brought before a justice of the peace of Polk county. A justice has no jurisdiction of equity cases. The case comes within the exceptions noted in Trust Co. v. Hicks, 116 Iowa, 114 (89 N. W. Rep. 103.)

There is no error in the rulings, and the judgment is AFFIRMED.