Leftwick v. Thornton, 18 Iowa 56

Leftwick v. Thornton

18 Iowa 56 | Iowa | 1864

Dillon, J

1. Practice: error of law by justice. 2. Appeal: irregularities. There can be no doubt that this action ought properly to have been brought in the corporate name th® church; and that the decision of the justice on the defendant’s demurrer was erroneous, This judgment of the justice might have been reversed upon writ of error. But instead of suing out this : writ the defendant appealed, which brought up “ the cause for trial in the District Court on its merits, and for no other purpose; and all errors, irregularities and illegalities were therefore to be disregarded.” Rev., § 3932; Hall v. Monahan, 1 Iowa, 554; Gibson v. Johnson, Id., 463; Griffin v. Moss, 3 Id., 261; Shawg v. Bruce, Id., 324; Frink & Co. v. Whicher, 4 G. Greene, 382.

3. Default: before justice: on appeal. The defendant was in default before the justice for want of an answer; and he could not on appeal, demur .. . . t-.. , . — or file an answer m the District Court as a matter of right. Ruddick v. Vaile, 7 Iowa, 44.

4. - effect of. The effect of his default was to admit that the plaintiffs on the record were entitled to recover something, and on appeal, the default continuing, he could only contest the amount of the plaintiffs’ recovery, not defeat that recovery altogether. This would, unquestionably, be the case unless the District Court should allow him to file an answer on making a satisfactory showing for not answering before the justice and for not applying to the justice to set aside the default. Ruddick v. Vale, supra.

There is no record entry showing that the District Court allowed the defendant to file an answer, so that the plaintiff’s rights to recover some amount is admitted upon the record; and the right to recover fifty dollars is established alike by the evidence and by the report of the referee.

5. Judgment entry: corpporation. The District Court, in rendering final judgment, properly corrected the irregularity as to the name of the Party plaintiff by entering up the recovery in favor 0f t,}^ church in its corporate name.

*59The finding of the referee against the defendant, is clearly in accordance with the preponderance of testimony.

Affirmed.

Cole, J., having been of counsel, took no part in the determination of this case.