77 P. 631 | Idaho | 1904
This action was originally commenced in Hailey precinct, Blaine county, and the complaint alleged that on the eighteenth day of February, 1901, plaintiff sold and delivered to the defendant a quantity of ice for which defendant promised and agreed to pay the sum of $100, and that he thereafter neglected and refused to pay. In addition thereto it contains the following allegation: “That all the terms and conditions of said contract were to be performed in Blaine county, Idaho.” Summons thereupon issued and was served upon the defendant in Boise City, Ada county. The summons was in substantial compliance with section 4655, Revised Statutes, but, like the complaint, made no mention as to whether or not the contract was in writing. On the day fixed in the summons for the appearance, the defendant filed his motion to dismiss the action upon the ground that he was a resident of Ada county, and that he had never been a resident of Blaine county, and on the further ground that the service of summons had not been made in the county of Blaine, but was made in
By the terms of section 4639, Eevised. Statutes, “Actions in justices’ courts must be commenced and subject to the right to change the place of trial (as in this chapter provided), must be tried: .... 7. When a person has contracted to perform an obligation at a particular place and resides in another county, precinct or city; in the precinct or city in which such obligation is to be performed or in which he resides.”
Under section 4668, Eevised Statutes, a complaint in a justice’s court “is a concise statement in writing of the facts constituting the plaintiff’s cause of action or a copy of the account, note, bill, bond or instrument upon which the action is based.”
Section 4655, Eevised Statutes, provides, among other things, that a summons from a justice’s court shall contain “a sufficient statement of the cause of action in general terms, to apprise the defendant of the nature of the claim against him.”
Section 4659, Eevised Statutes, provides that “The summons cannot be served out of the county in which the action is brought, except .... when an action is brought against a party who has contracted in writing to perform an obligation at a particular place, and resides in a different county, in which ease summons may be served in the county where he resides.”
An examination of the foregoing statutory provision will disclose that the section providing the precinct or justice’s court in which actions may be commenced authorizes an action to be instituted in the precinct where the obligation is to be performed, but does not require that obligation to be in writing. On the other hand; it is provided that a summons cannot be served out of the county in which the action is commenced unless the contract was in writing and to be performed in the county in which the action was begun. The respondent contends that this question of jurisdiction in such a case must appear from the record at the time the summons is issued and
It is evident from the record in this ease and the proceedings had before the justice that both plaintiff and defendant, as well as the justice who heard the case, considered the issue that the action had been commenced in the wrong county had been properly raised, and that it remained an issue throughout the entire trial as contemplated by subdivision 4 of section 4726, Bevised Statutes. After the court had ruled adversely to the defendant upon his original motion, he remained through the trial and at the close of plaintiff’s evidence renewed his motion and based it upon the additional ground that the evidence in the ease failed to show that the contract sued upon was in writing and to be performed in Blaine county. This question of jurisdiction could be kept good as a question of fact in this manner as well as it could be preserved as a question of law by an original motion to dismiss. Section 4726, Bevised Statutes, is as follows: “Judgment that the action be dismissed without prejudice to a new action may be entered with costs, in the following eases:.'4. When it is objected at the trial, and appears by the evidence, that the action is brought in, the
A defendant might have no defense to an action upon its merits, and still the court have no jurisdiction of the defendant for the very reasons urged by the defendant in this ease. In such case, however, he would not be required to defend upon •the merits in order to save the objection, but might rely upon the question of jurisdiction both as a question of law and a •question of fact; and this issue, while it would not defeat plaintiff’s right of eventually recovering when he proceeds in the proper jurisdiction, still it would completely and effectually defeat the recovery in that particular action and within that jurisdiction. In the manner the question of jurisdiction was raised from the beginning in this ease, it presented both an issue of fact and law rather than an issue of law alone. When presented to the district judge upon affidavits with discordant and conflicting evidence thereon, we think the motion should have been denied in the first instance and should ‘have been determined upon the evidence in the case; and if it appeared therefrom that the action was . commenced in the wrong county, the judgment of the justice’s court should have •thereupon been reversed; otherwise, plaintiff would have been ■entitled to recover.
The judgment of the district court is reversed and the cause remanded, with instructions to take further action in the case in harmony with the views herein expressed. Costs of this appeal awarded to appellant.