Rahn v. Greer

37 Iowa 627 | Iowa | 1873

Miller, J.

i justice of the peace. I. The defendant and appellee, in his application for the writ of error to the justice, alleges, as the first error complained of, the refusal of the justice dismiss the action on defendant’s motion. Without intimating an opinion whether theré was or was not error in this action of the justice it is very clear that the defendant could not urge this ruling as erroneous in the circuit court, for the reason that he acquiesced in the ruling by appearing before tbe justice on tbe day to which the cause had been adjourned, filed his answer and moved to change the venue. If there was any error in the refusal of the justice to dismiss the action the defendant waived it by his subsequent conduct in the case.

a_jurisaiotlon" II. The next ground of complaint urged was and is, that the justice erred in assuming jurisdiction of the causé and frNng same after granting a change of venue. It is urged on the part of appellee that after the justice had granted a change of venue he had no longer any power or authority over the case; that his jurisdiction was entirely gone and could not be resumed. (On the other hand' it is claimed that the order granting the change of venue was conditioned upon the payment of the accrued costs by the defendant, and that he having failed and refused to pay the same the justice had jurisdiction to proceed to try the cause.

"We do not find it-necessary to decide which of these theories is the correct one, as we hold that the appearance by the defendant’s authorized attorney on the day of the trial, before the justice, was a waiver of any error there might have been in the resumption of jurisdiction over the case by the justice. It is true the record shows that such attorney “ disclaimed appearing for defendant; ” but it also shows that “ at the same time he cross-examined the witnesses of plaintiff.” Under our practice a party is not allowed to come into court and avail himself of the benefits of an appearance, and, at the same time, disclaim appearing, and thereby secure the advantages of not appearing. •

The subject matter of the action being such as came within the justice’s jurisdiction, it was competent for the parties, by agreement or voluntary appearance, to confer upon the justice full jurisdiction to hear and determine the issues in the case, and, although a change of venue had been granted on the application of defendant, still he might waive the .order by appearing before the justice and consenting, either expressly or by implication, to a trial before him.

It has been, held by this court that an appearance to object to the original notice because not properly stamped, and to cross-examine plaintiffs witnesses was a full appearance and rendered the sufficiency of the original notice immaterial (Wilsey v. Maynard, 21 Iowa, 107); and the statute provides that an appearance “for any purpose connected with the cause,” though specially made by the defendant or his attorney, “shall render any further notice unnecessary.” Revision, § 2850; see also Hale v. Van Saun & Hunt, 18 Iowa, 19 ; Burns v. Keas, 20 id. 16. The same rule applies in actions in justices’ courts as in the courts of record. Revision, §§ 3858, 3859. This last section provides that ordinary actions in justices’ courts may be commenced by notice or voluntary appearance. The effect of this is that a voluntary appearance confers jurisdiction upon the justice in an ordinary action. That appearance, as we have seen, if made by the defendant for any purpose connected with the cause, operates as a full appearance.

3 _correction of judgment. III. It is urged by appellee that the justice erred in rendering judgment against the defendant for a sum greater than the am01ird claimed by the plaintiff in his original notice. It does appear that the judgment, as originally entered, was excessive, but it also appears that upon the attention of the justice being called to the fact he at once corrected the judgment by reducing it to an amount within the claim of the plaintiff. This was done, it is true, after the writ of error had been applied for by the defendant, and perhaps after it had been issued and served; the record does not show but the correction was made long before the case came on for hearing on the writ in the circuit court. The judgment was corrected August 28th, 1871, and the cause was heard in the circuit court June 20th, 1873. The plaintiff made no complaint of the action of the justice in this respect, the defendant could not, as it was in his favor, so that at the time of the trial in the circuit court this alleged error was removed, and, therefore, did not afford grounds for reversing the judgment of the justice. The correction having been made, however, after application for the writ of error, the costs of the proceedings in the circuit court should be taxed to the plaintiff.

We have noticed all the errors presented in argument and fail to find any authorizing the circuit court to reverse the judgment of the justice of the peace. ■ The judgment of the circuit court will be reversed, the costs of that court taxed against the plaintiff, and the costs of this court will be taxed against the defendant.

Reversed.