Johnson v. Dodge

19 Iowa 106 | Iowa | 1865

Dillon, J.

2 Jurasment' The questions made relate to the original and published notices of the action. Concurrently with filing of the petition, an original notice was issued by the justice, “returnable on the 26th day of April, A. D., 1864,” and stated further, “that unless you (the defendant) appear before me, a justice of the peace of Taylor township, Appanoose county, Iowa, and make defense, judgment will be rendered,” &c.

It will be perceived, that the notice, which was otherwise perfect, did not name the hour. It was duly returned by the constable “not found.” The writ of attachment properly named the hour and place of trial, and was levied upon certain personal property.

Upon the return of “not found,” the justice, under the Eev. (§ 3950), made the order therein prescribed, and fixed the time of trial for the 25th day of June, 1864, at one o’clock, p. M.

The constable duly posted the notices required by section 3951, in Taylor township. These notices named the day and hour of trial accurately, and are conceded by the defendant to be in due form, except as to the place of trial. They notified the defendant, among other things, “that there is now pending before F. F. Hearn, a justice of the peace in and for the county of Appanoose, Iowa, a suit,” &e., but did not specify or name the township of which he was justice.

The appellant claims that the notices required to be .posted by section 3951, must contain the essential requisites of an original notice. Rev., §§ 3861, 3862. And the point is, that it does not sufficiently name the place (§ 3862), unless it specifically names the township of which the justice is an officer.

If it be granted that the posted notices must, inter alia, contain the material requisites of the original notice, no section of the statute has been pointed out which requires the township of a justice to be named in an original notice. Sections 3861 and 3862 remain as under the Code of 1851. The township is not named in the form there prescribed for an original notice. (Code of 1851, § 2520.) It is not in terms required to be named in the sections themselves. It is better to name it, but this is not so essential that its mere omission will justify a reversal. We distinguish this case from Hodges v. Brett, 3 G. Greene, 345 (correctly decided), in this, that here the original notice being returned “ not found,” had served its .purpose, and was not the notice relied on to confer jurisdiction over the property attached.

It differs also from Hallem v. Leonard, 17 Iowa, 564, as there is here no showing that the defendant knew of the alleged errors in time to apply for their correction before the justice within the six days.

% Jotohent: attachment. The judgment of the District Court is affirmed, except that the judgment against the defendant is to be corrected so far 'as it authorizes a general execution for any . ^ J residue after exhausting the attached property. As there was no personal service, the judgment of the justice was so far erroneous.

Costs in this court to be equally divided.

With the modification above, the judgment is

Affirmed.