40 Iowa 665 | Iowa | 1875
Lead Opinion
There is no conflict in the evidence, and it shows the following facts as to plaintiff’s title: December 1, 1857, David Buzzard filed his verified petition in the Polk District Court against Horace Carr, upon a promissory note for one hundred dollars, and upon the ground that the defendant was a no.n-resident, asked and obtained a writ of attachment, which was issued, and on the same day was levied upon the lots in controversy. At the appearance term the cause was continued for service by publication, the original notice having been returned by the sheriff “not found.” An order was made by the clerk directing that the notice be published in the Iowa State Journal; and at the March Term, 1859, (March 12,) proof of publication in said paper, and that a copy of the petition had been mailed to the defendant, was filed, and thereupon a general judgment by default for one hundred and twenty-five dollars and costs was rendered. July 8, 1859, a general execution was issued thereon, and on the same day was levied upon said lots eight and nine, they were duly advertised for sale and on August 13, 1859, were sold together, to Laird Bros., for $1,600, and on December 19, 1860, a sheriff’s
On January 1,1859, Laird Bros, filed their verified petition in the Polk District Court against Horace Oarr, claiming fifteen hundred dollars for money paid as his surety, and alleged his non-residcnce and thereon asked a writ of attachment, which was issued and levied on the same day upon the. lots in controversy; the original notice was returned on the same day, “not found.” No service of notice by publication or otherwise appears of record; but on March 8, 1859, a general judgment upon default was rendered against said defendant, Oarr, for $1,472.38; and on July 20th, 1859, a general execution was issued thereon, and placed in the sheriff’s hands; and his return shows that he credited $1,431.37 on said execution, it being the surplus of the $1,600, bid for the lots, after j>aying the amount of the Buzzard execution and costs. Upon the subject of the service of notice upon Oarr, one of the plaintiffs testifies, “ my imj>ression is J. ~W. Laird wrote him on the subject, and got an answer from him acknowledging service in the case, which appeared to be satisfactory to the attorneys;” while one of their attorneys testifies “that according to my best recollection there was a publication, hut of that fact I would not be positive.” These facts constitute the basis of the plaintiff’s title.
The following are the facts as to the defendant’s title. ' On April 2, 1857, Henry Courtney filed his verified petition in the District Court of Boone county against Horace Carr, claiming eight thousand dollars damages connected with the sale of certain real estate; the non-residence of said Oarr was averred and a writ of attachment was asked, and was duly issued; one writ was issued to Polk county, and this was duly executed on April 22, 1857, by attaching .the lots in controversy ; another writ was issued to Boone county, and this was executed there, August 14, 1857, by attaching certain land, upon which said Oarr held a mortgage executed to him by said Henry Courtney. At the appearance term, and on October 6, 1857, and without-any service of notice upon him, the defendant, Carr, entered his special appearance and moved the
From these facts, it is manifest that the superiority of the plaintiff’s title over the defendants depends upon the invalidity of the writ of attachment issued by the Boone District
The statute in force at the time the action by Courtney against Carr was instituted, enacted that “ except where otherwise provided, personal actions must be brought in a county wherein some of the defendants actually reside. But if none of them have any residence -within this state, they may be sued in any county wherein either of them may be found.” Code of 1851,. Sec. 1701. And it was also enacted that “ in cases of attachment of property when the defendant is not served, or in cases where the suit is brought to obtain possession of personal property, or to enforce a lien or mortgage, or where it relates to real property, it may be brought in any county where the real property or any portion of it lies, or where any part of the personal property may be found.” See. 1703. And it is also enacted that, “ if a suit be brought in a wrong county, it may be there prosecuted to a termination, unless the defendant demand a change of venue to the proper county. In cases of such change of venue, the court shall order the same at the costs of the plaintiff, and may award the defendant a reasonable compensation for his trouble and expenses in attending at the wrong county.” Sec. 1702. It may be well, in this connection, to set forth also the constitutional provisions respecting the District Courts and their jurisdiction, so far as they bear upon the question under consideration, to-wit:
“ The judicial power shall be vested in a Supreme Court, District Courts, and such other courts, inferior to the Supreme Court, as the general assembly may from time to time establish.” Art. 5, Sec. 1. “ The District Court shall be a court of law and equity, which shall be distinct and separate jurisdictions, and have jurisdiction in civil and criminal matters aris*670 ing in their respective districts, in such manner as shall be prescribed by law.” Art. 5, Sec. 6.
From these constitutional and legislative provisions it is plain to be seen that the District Courts are courts of general jurisdiction, and, except so far as the manner of its exercise is prescribed by the statute, it has jurisdiction over every cause brought within its district. This idea of the general and unlimited jurisdiction of the District Court is further illustrated by the fact that'they are styled the District Court for the State, held in and for a particular county, and the judges of the District Courts are judges for the state, with authority to grant writs funning into any part of the state and to hold District Courts in districts -other than those in which they were elected. It is therefore clear, beyond question, that the District Courts have general jurisdiction of all matters brought before them. But the manner of the exercise of this general and inherent jurisdiction is prescribed by law. The legislature may not deprive the District Court of its jurisdiction, nor, in the least, limit it; all that it is authorized to do is to prescribe the manner of its exercise. This the legislature has done by the enactments above quoted, whereby it is provided that in cases of attachment of property when the defendant is not served (and this was the case in Courtney v. Carr, above stated), the action should be brought in the county where the.property attached', or some portion of it, was situated. This, without more,‘would not deprive the District Court of its general jurisdiction over the subject matter, which the constitution has conferred, so as to render its proceedings or judgment void, that is a nullity; although it might very clearly give the right to the defendant to appear and have the action dismissed, because it was not brought in the manner provided by statute. But, however this may be, the statute itself expressly provides that if the suit be brought in the wrong county, the court shall still have jurisdiction, and the cause may be there prosecuted to a termination unless the defendant demand a change of venue to. the proper county. The jurisdiction of the court, then, is not questioned or limited either by the constitution or the statute; and if the court should erroneously or illegally
It follows, therefore, that the jwiscliction of the District Court of Boone county over the cause of action existed, because of its general jurisdiction over the subject matter of it, and because the action was brought there; and the fact that no property of the defendant subject to attachment was found in the county, did not defeat its jurisdiction or render its proceedings void, but it gave to the defendant the right (of which he availed himself) to appear and have the cause transferred to the proper county. All of the proceedings were of the same force and validity as if the action had been brought in the proper county, or as if the property of the defendant had been found and attached in that county. The action was erroneously brought in Boone county, and the defendant had this error corrected. Such error did not defeat the jurisdiction of the court.
It is, however, claimed by the appellees’ counsel, that it was decided by this court, in Courtney v. Carr, 6 Iowa, 238, that the District Court of Boone county did not have jurisdiction of the case, in which the writ of attachment was issued whereon the defendant’s title in this case rests. A careful reading of the opinion in that case will clearly show the error of such claim, and it will be abundantly manifest by a brief analysis of that case. That action was brought in Boone county; the defendant was a non-resident and not served with notice; two writs of attachment were issued, one to Boone county and the other to Bolk county; the latter was served and levied upon the lots in controversy, and the former was levied upon certain lands of which the defendant, Carr, was mortgagee. The defendant, though not served, appeared specially, and moved to change the venue of the cause to Polk county, because property had been attached there, and none had been attached in Boone county. This motion was overruled by the District
Another view which shows that the Supreme Court regarded the writ of attachment as valid and effective is, that the order for the change of venue from Boone county to Polk, was because-property had been attached, under that writ of attachment, in Polk county. But if the writ of attachment was invalid or void because of the want of jurisdiction of the cause
Having thus found that the writ of attachment issued from the District Court of Boone county was legal and valid, it follows that the defendants have the paramount title, since that writ was first issued and first levied upon the property in controversy. The defendants are entitled, under their cross petition, to have their title to the property quieted and confirmed in them.
REVERSED.
'Without determining that Section 1702, of the Code of 1851, applies to an action of attachment brought in one county, where property is attached in another, and no personal service is had, and authorizes it to be there prosecuted to judgment, unless the defendant appears and moves a change of venue, I, upon other grounds, reach the conclusion that the
The attachment in question, at the suit of Henry Courtney, was levied on the 22nd day of April, 1857. The attachment at the suit of David Buzzard was levied on the 1st day of December, 1857.
It cannot be doubted that any act done by Horace Oarr, the owner of the property levied upon, intermediate the levy of the first and second attachments, affecting his interest in or his status in relation to the property, would in like manner affect the interest acquired by Buzzard, the subsequent attaching creditor. An attaching creditor acquires through his attachment no higher or better rights to the property attached,
Now, at the moment that Oarr appeared in the Boone District Court, and recognized the validity of the attachment in Polk county, and demanded a change of venue, he voluntarily affected the status of the property and his own relation to it, just as much as if he had executed a mortgage upon it, or confessed a judgment which became a lien upon it. Suppose after he had procured the order for a change of venue, he had
And if Carr could' not be heard to interpose such a claim, those purchasing under the Buzzard judgment cannot interpose it for they succeeded to just such rights as Carr had at the time they levied their atiachment.
Upon these grounds, and without further elaboration of the' reasons assigned, I am of opinion that those claiming under the Courtney judgment have the paramount title, and that the judgment should be reversed.
Dissenting Opinion
dissenting. The sections of the Code of 1851' prescribing the place of bringing suit áre not cited in the
. If the District Court had no jurisdiction in the case, all its proceedings were void. The attachment issued upon which the lots in dispute were seized, was one of these proceedings and must fail. I see no escape from this conclusion.
Upon the transfer of the case to the Polk District Court,- it acquired jurisdiction, but this did not cure the invalidity of the attachment,.for the writ was not a part of its proceedings. A writ void when-issued for want of jurisdiction will not be rendered valid by the subsequent acquisition of jurisdiction in the proceedings, certainly not as to rights and acts accrued and done before such acquisition of jurisdiction. Now, if the writ of attachment could have been made valid by the trans:fer of the case to Polk county and the acquisition of jurisdiction of the court of that county, and is to be regarded as a writ of that court, a proposition I by no means admit, this Was long after the attachment issued in the case, under which' plaintiffs claim title. Their lien, in this view, if otherwise valid, would be the older.
II. Carr’s special appearance in the Boone District Court authorized that court to transfer .this cause to Polk county. This was so held in the cause when in this court. 6 Iowa, 238. His appearance in the court of the last named county, conferred jurisdiction thereon. But the jurisdiction thus acquired could not act retrospectively, so as to affect the rights of third persons acquired before it attached. For this reason a motion of defendant to dissolve the attachment, which, as against him might preclude denial of the validity of the writ, could not affect the interest of plaintiff under the levy of the attachment in another case made before such case -was brought to Polk county. The act of defendant in the action, while binding him, could not prejudice the rights of third persons.
Upon the grounds I have briefly stated, I dissent from the foregoing opinions announcing the conclusion of a majority of the court. "