46 Iowa 503 | Iowa | 1877
Lead Opinion
“3507. The jurisdiction of justices of the peace, when not specially restricted, is co-extensive with their respective counties; ******** *.”
“ 3509. Suits may, in all cases, be brought in the township
“ 3510. They may also be brought in any other township of the same county, if actual service on one or more of the defendants is made in such township.”
“3511. Actions to recover personal property, and suits commenced by attachment, may be commenced in any county and township wherein any portion of the property is found, and justices shall have jurisdiction therein within the county.”
These sections are copied verbatim from the Revision of 1860, except in 3511 the word “replevin” is superseded by the words “recover personal property” The sections of the Revision were copied from the Code of 1851, except that section 3511, above quoted, does not contain the .last clause as it appears in the Code of 1851, section 2265. It is there found in these words: “Actions of replevin, and suits commenced by attachment, may be commenced in any county and township wherein any portion of the property is found.”
Chapter 93 of Acts of the Fourth General Assembly, amending the Code of 1851, contains this provision:
“ Sec. 2. In actions in which writs of attachment or replevin shall be issued, justices of the peace shall have jurisdiction coextensive with the county.”
This provision was not intended to supersede or repeal section 2265 of the Code of 1851, which was left standing. The compilers of the Revision of 1860, intending that the provisions of the Code and of the amendatory act just referred to should remain in force, united section 2265 of the first to section 2 of the last. From these we have the reading of section 3853 of the Revision and 3511 of the Code of 1873. Without rejecting any of the words of the section and by giving all of them proper force, which the rules of construction require, the provision plainly means: 1. That the actions named may be commenced in any county and township where the property is found; 2. That in these actions justices of the j>eace shall have jurisdiction within their counties. By this construction we reject no word. The occurrence of the word “township” is unnecessary to convey the thought of the provision, but pre
It is argued that the word “ therein,” used in the last clause of the sentence, refers to actions brought in the township wherein the property is found. But this is not the grammatical construction of the language. It refers to actions of replevin and attachment, without regard to qualifying words.
The construction we approve gives jurisdiction to justices of the peace in actions of replevin and attachment throughout the county, without regard to the township of the residence of the parties or the township wherein the property is found. It was first adopted by the court in Leversee v. Reynolds, 13 Iowa, 310, and followed in Riddle v. Allender et al., 14 Iowa, 410, and approved in Craft v. Franks, 34 Iowa, 504.
A different construction was approved in Meunch v. Breitenbach, 41 Iowa, 527. This case was presented to us without argument or citation of authorities by counsel, and the former decisions of this court upon the point were not brought to our attention in any manner. The point received no consideration in the light of the former cases, and, as will be observed by consulting the opinion, was not at all discussed. In view of the fact that the former decisions of this court are in harmony with reason and the rules of construction of statutes, we now follow them rather than the later case, which we now overrule: The judgment of the Circuit Court is
Affirmed.
Concurrence Opinion
I concur in the conclusion reached in the foregoing opiniomon the last ground referred to therein. Leversee v. Reynolds was decided some years since. The construction then adopted must be presumed to have met the approval of the General Assembly and the profession. If that case had been cited I am satisfied it would have been followed in the
Dissenting Opinion
dissenting. — I do not think that a suit in replevin can be commenced before a justice of the peace in a township where neither of the parties resides, nor the property nor defendant is found.
The provision of section 3511 of the Oode, that the suit may bo commenced in any “ township wherein any portion of the property is found,” to my mind imposes by implication a. restriction just as certainly as if it were imposed directly. According to the majority opinion, the suit may be commenced in any “township wherein any portion of the property is found” or is not found. In other words it is thought that no restriction whatever is imposed in a replevin suit so far as the township is concerned.
The majority opinion eliminates the word towmhi/p from section 3511, and, if that is a restrictive word, it eliminates a restriction. After having denied the restrictive character of the word township, the opinion says: “The occurrence of the word township is unnecessary to convey the thought of the provision.” This would be true if we are at liberty to deny the restriction. The question then is, as to whether the word township is restrictive in the use there made of it. If it is, we cannot eliminate it, except upon the ground that the restriction is repugnant to a provision which follows, and that the latter provision must prevail.
As to the question whether the word township has a restrictive use, the idea, as I understand it, of the majority of the court is, that authority to commence a suit in a certain township is not a denial of authority to commence it elsewhere. In one sense this is true, but is it true within the meaning of the statute? I think not. It is in conflict with the rulé that force must be given to every word if it can be done consistently. Resides, why should we construe the word township in section 3509 and in section 3510 as restrictive, and not in 3511? That
I have two reasons for thinking that the view of the majority of the court is not tenable. One I have already alluded to, and that is, that we should not readily conclude that the use of the word township is senseless; and the other -is, that I can see no reason for such a provision as section 3’511 becomes if so construed.
If the provision is regarded simply as an enlargement of the restriction imposed by the two .preceding sections, but as restrictive still, the reason for it is abundantly evident. But no good reason, I think, can be given why, in a replevin suit, the restriction which sections 3509 and 3510 would otherwise impose should by section 3511 be entirely withheld.
It is thought by the majority of the court that the use of the word township as restrictive is inconsistent with the provision that “justices shall have jurisdiction therein within the county.” A question is raised in regard to the meaning of the word therein. To my mind it refers to actions commenced in the manner provided. In the view of the majority, it refers to actions in replevin and attachment in a general way. It is said that it is not in accordance with “the grammatical construction of the language” to construe the word therein as referring to actions commenced in a prescribed township. To my mind the grammatical construction affords no especial aid to either view. If the view which I entertain is not correct, it is because it is improper to say that an action in replevin can be brought only in certain townships, and at the same time that the justice has jurisdiction in actions of replevin throughout the county. I differ from the majority of the court in regard to the meaning of the word jtwisdiction as hereused.
The provision that an action in replevin shall be brought in a certain township does not prevent the justice from exercising jurisdiction therein throughout the county. A writ of re
The majority opinion is directly in conflict with Meunch v. Breitenbach, 41 Iowa, 527, the latest decision of this court construing the statute.
The case of Leversee v. Reynolds, 13 Iowa, 310, cannot be regarded as well considered, for the decision is put upon the ground that the construction adopted is necessary, in order to “give force to and preserve all the words of the statute,” and yet it did not give force to and preserve all the words of the statue, as is now virtually admitted in the majority opinion; and the fact that it did not seems in Leversee v. Reynolds to have been entirely overlooked. The case of Craft v. Franks involved nothing which was decided in Leversee v. Reynolds. The case is cited to be sure, but it can hardly be said to be approved. I cannot regard the question as a doubtful one, but even if it were, I should consider the latest decision as the most authoritative.
