Herald Printing Co. v. Walsh

127 Iowa 501 | Iowa | 1905

Ladd, J".

The writ of error is issued from the district court to the justice court for the sole purpose of correcting “ an erroneous decision in a matter of law or other irregularity in the proceedings.” Section 4569, Code. While the district court may “ render final judgment, or it may remand the cause to the justice for new trial or such further proceedings as shall be deemed proper” (section 4576), this must be in pursuance of a review of the rulings made by the justice. The authority is like that conferred on this court in disposing of a case heard on error from the district court. Section 4139. The order to be entered is always that essential to the correction of the errors in the rulings complained of. These are to be asserted in the affidavit, and established by “ record and proceedings in so far as they relate to the facts stated in the affidavit ” as returned by the justice in response to the writ of error. Sections 4570, 4571, Code. If not sufficiently full and complete, he may be compelled to amend. Section 4574, Code. Tbe action tben stands for bearing on tbe errors in tbe rulings of tbe justice, as appear from tbe return made by bim, and not on tbe merits. As said by Wrigbt, 0. L, in tbe early case of Stone v. Murphy, 2 Iowa, 35: “ To sucb return we must refer in determining wbetber there was sucb error in bis records and proceedings. Tbe averment in tbe affidavit amounts to nothing unless there is a response to tbe same in tbe justice’s return.” And in Lane v. Goldsmith, 23 Iowa, 241, Cole J., declared: “ It is tbe return to tbe writ that forms tbe basis upon which tbe court must act.” See, also, Vance v. Kirfman, 20 Iowa, 13. A question not raised in tbe justice court cannot be reviewed on writ of error. Edwards v. Cosgros, 71 Iowa, 296. This is for the manifest reason that in the absence of any decision there could have been no error. In tbe instant case tbe return of tbe original notice indicated that service was bad on defendants in tbe township in which tbe judgment was entered, and, in tbe absence of anything to tbe contrary contained in tbe justice’s record, their residence is presumed to have been such as to have conferred jurisdiction. Little v. Devendorf, 109 Iowa, 47; Church v. Crossman, 49 Iowa, 444. In other words, tbe judgment, until assailed, is assumed to be valid. If defendants were nonresidents of tbe county, there was nothing in the record or proceedings before tbe justice to establish tbe fact.

But defendants, with tbe approval of tbe district court, introduced evidence tending to show that they were residents of Linn county, and the court based its judgment thereon. In what pleadings was this issue raised ? Not by tbe affidavit filed, for that asserted an error in the decision of tbe justice, and he bad never beard or passed on this evidence. Possibly, had tbe parties appeared before bim and introduced this evidence, a different conclusion would have been reached. This they did not do, and tbe district court, in bearing tbe same and basing its conclusion thereon, did not pass upon any ruling or decision of tbe justice, but awarded a trial de novo, wbicb could be done on appeal only. True, it bas been remarked in several cases that the remedy by which to test the jurisdiction of the justice court is the writ of error; but as observed in Craine v. Fulton, 10 Iowa, 457, “ the appellant cannot, under our law, set up by a new pleading a question not presented by the pleadings or raised in any manner in the justice’s court.” In Brown v. Davis, 59 Iowa, 641, the justice construed a note to confer jurisdiction in a controversy over an amount in excess of $100, and he was held to have erred. In Belding v. Torrence, 39 Iowa, 516, the cause was dismissed by the justice on motion, and it was this ruling which could be corrected on writ of error only. To the same effect, see McMeans v. Cameron, 51 Iowa, 691. In Baily v. Birkhofer, 123 Iowa, 59, the cause was transferred to the district court by consent. In Holmes v. Hull, 48 Iowa, 177, the justice, in 'holding that he had jurisdiction to try the issues raised by counterclaim, necessarily held that an attorney appeared therein, and the ruling was disapproved. In each of these cases the issue was one of law, which the justice had decided. In no case has this court ever intimated that an issue of fact as to the jurisdiction of a justice of the peace may be first raised on writ of error in the district court, and there tried. The remedy in such a case is b^ appeal. On writ of error, issues of law only may be determined, and these must appear from the record and proceedings as returned by the justice. In other words, as to points so raised the district court sits solely as a court for the correction of errors. That plaintiff was not without a remedy appears from Porter v. Welsh, 117 Iowa, 146. The court should have declined to hear evidence, and sustained the motion to dismiss.— Reversed.