Meunch v. Breitenbach, 41 Iowa 527

Meunch v. Breitenbach

41 Iowa 527 | Iowa | 1875

Day, J. —

The following are the provisions of the Code of 1878, respecting the place of bringing suit in a justice’s court:

“ Suits may, in all cases, be brought in the township where the plaintiff or defendant, or one of several defendants resides.

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.

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.” Sections 3509, 3510, 3511 and 3514.

The testimony fully shows that both parties to the suit resided in Lizard township, that the property in controversy was held in that township, that the original notice was served there, and that there was, at that time, a duly qualified and acting justice of the peace of that township. It is very clear, then, that a justice of the peace of Bellville township had no jurisdiction over the parties, or the subject matter of the suit.

As we have no argument of appellee, we are not advised upon what grounds the court overruled the defendant’s plea in abatement. It is stated by appellant that the decision of the court was placed upon the ground that a plea in abatement was not the proper way of presenting the objection, that, the defendant should have filed his motion for a change of venue, or to dismiss, and supported the same by affidavits, and then brought the case up on writ of error.

VS,NUB. action. No provision is made for a change of venue to the proper township wheli an action has been brought before a justice of the peace in the wrong township. In Post v. Brownell, 36 Iowa, 497, we held that Section 2802 of the Eevision, respecting actions brought in the wrong county, does not apply to an action pending before a justice of the peace.

*5302. MrBADiN®.abatement' • The corresponding section of the Code is 2589. Whilst it may be that a motion to dismiss could be entertained, yet the proper mode of raising the objection of want of jurisdiction, where it is not apparent upon the face of the petition, is by pleading the facts in abatement.

Section 2648 of the Code provides that the defendant may demur to the petition when it appears upon its face, “ that the court has no jurisdiction of the person of the defendant or the subject of the action.” Section 2650 provides that “ when any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer.” And Section 2732 provides that “ matter in abatement may be stated in the answer or reply, either together with or without causes of defense in bar.” We are clearly of opinion that the plea in abatement should have been sustained.- As this is decisive "'of the present action, it is not necessary to determine whether or not the court erred in refusing to allow the proposed amendment.

Reversed.