125 Iowa 367 | Iowa | 1904
The justice’s judgment purports to have been rendered November 26, 1900. It recites that due and legal notice in writing had been given the defendant and his attorney of record more than five days next preceding the
There is no doubt, under the evidence, that the original summons was properly served upon the defendant; but under the evidence we must hold that Attorney Murphy had no authority to appear for him. However, it was the conduct of Murphy which caused the delay in taking judgment for more than two years. These being the facts,' it sufficiently appears that defendant was served with notice, and that for failure to appear within the required time plaintiffs in that action were entitled to a default and judgment. But for the action of an unauthorized attorney, he would have secured it at the time fixed in the summons for defendant’s appearance.
The material statutes (Code Civ. Proc.) of the State of California read as follows:
Section 104. A justice’s court may be held at any place selected by the justice holding the same, in the township for which he is elected or appointed; and such court shall be always open for the transaction of business.
Section 832. Actions in justice’s court 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, township or city — in the township or city in which such obligation is to be performed, or in which he resides; and the township or city in which the obligation is incurred shall be the township or city in which it is to be performed, unless there is a special contract to the contrary. (8) When the parties voluntarily appear and plead without summons — in any township or city in the State.
Section 832, subsection 1. If there be no justice’s court for the township or city in which the defendant resides — in any city or township of the county in which he resides. (2) When two or more persons are jointly and severally bound, in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships or dif
Section 839. An action in justice’s court is commenced by filing a complaint.
Section 840 provides that the justice must indorse on the complaint the time of filing, and that at any time within one year thereafter plaintiff may have a summons issue.
. Section 847 provides for the issuance of alias summons, as demanded by plaintiff, within one year.
Section 849 provides that the summons may be served by a constable of any county of the State, or by any male resident over the age of eighteen years, not a party to the suit, within the county in which suit is brought.
Section 411 provides that the summons shall be served by delivering a copy to the defendant personally.
Section 416. From the time of the service of the summons and a copy of the complaint in a civil action, where service of a copy of the complaint is required, or of the completion of the publication when service by publication is ordered, the court is deemed to have acquired jurisdiction of the parties, and to have control of all the subsequent proceedings. . The voluntary appearance of the defendant is equivalent to personal service of the summons and copy of the complaint upon him.
Section 434. If no objection be taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.
Section 850. When all the parties served with process shall have appeared, or some of them have appeared, and the remaining defendants have made default, the justice must fix a day for the trial of said cause, and notify the plaintiff and defendants who have appeared, thereof. The parties are entitled to one hour in which to appear after the time fixed in the said notice, but are not bound to remain longer than that time, unless both parties have appeared, and the justice, being present is engaged in the trial of another cause.
Section 871. If the defendant fail to appear, and to answer or demur within the time specified in the summons,
Section 872. In the following cases the same proceedings must be had, and judgment be rendered in like manner, as if the defendant had failed to appear and answer or demur: (1) If the complaint has been, amended, and the defendant fails to answer it as amended, within the time allowed by the court; (2) if the demurrer to the complaint is overruled, and the defendant fails to answer at once; (3) if the demurrer to the answer is sustained, and the defendant fails, to amend' the answer within the time allowed by the court.
Section 1012. Service by mail may be made, where the person making the service, and the person on whom it is to be made, reside or have their offices in different places, between which there is a regular communication by mail.
Section 1013. In case of service by mail, the notice or other paper must be deposited in the postoffice, addressed to the perosn on whom it is to be served, at his office or place of residence, and the postage paid. The service is complete at the time of the deposit, but if within a given number of days after such service a right may be exercised, or an act is to be done by the adverse party the time within which such right may be exercised or act be done is extended to one day for every twenty-five miles distance between the place of deposit and the place of address, such extension, however, not to exceed nine days in all.
Section 1014. A defendant appears in an action when he answers, demurs or gives the plaintiff written notice of his appearance, or when an attorney gives notice of an appearance for him. After appearance a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given. But where a defendant has not appeared, service of notice of papers need not be made upon him unless he is imprisoned for want of bail.
Section 874. The court may, of its.own motion, post-, pone the trial: (1) For not exceeding one day, if, at the time fixed by law or by an order of the court for trial, the court is engaged in the trial of another action. (2) For not exceeding two days, if by an amendment of the pleadings, or the allowance of time to make such amendment or to plead, a postponement is rendered necessary. (3) For not exceeding three days, if the trial is upon issues of fact, and a jury has been demanded.
Section 875. The court may by consent of the parties given in writing or in open court, postpone the trial to a time agreed upon by the parties. -
Section 87 6. The trial may be postponed upon the application of either party, for a period not exceeding four months.
Section 877. No adjournment must, unless by consent of parties, be granted for a period longer than ten days, upon the application of either party, except upon condition that such party file an undertaking, in an amount fixed by the justice, with two sureties, to be approved by the justice, to the .effect that they will pay to the opposite party the amount of any judgment which may be recovered against the party applying, not exceeding the sum specified in the undertaking.
Other sections with reference to what a justice’s docket should contain provide, in substance] that it shall show the title of the action, the object thereof, and, if for money, the amount thereof; the date of the summons and the time of its return; the time of appearance,;.or-of non-appearance if default be made;'a minute of the pleadings, and, if in writing, reference to them; every adjournment, stating on whose application and to what time; and the judgment of the court specifying costs, and the time when rendered.
Section 912. The several particulars of the last section
II. The next issue presented by the answer is that no notice was ever served upon the defendant of the suit before the justice. We have no doubt that such a notice was personally served by the delivery of a copy of the summons, to which was attached a copy of the complaint, to the defendant personally. The great preponderance .of the testimony is to this effect. That service was on the date above stated.
III. Complaint is made that the action before the justice was continued and postponed contrary to the statutes of California; that no notice of final trial and hearing was ever serv.ed on defendant as required by law; that defendant made no appearance to that action; and that the transcript of the record of the judgment does not show the things required by law, and that the entire proceedings were and are void. Many of these issues were bare conclusions of the pleader, but, as no objection was made thereto in the trial court, we shall consider such as appear to have been treated as in issue by the lower court. The rulings on evidence fur
Some other defects in the transcript are complained of, but none of them go directly to the jurisdiction of the justice. The justice acquired jurisdiction by the service of summons upon the defendant. The attorney’s appearance was unauthorized ; hence no trial notice waá necessary. The statute requiring immediate entry of judgment was directory, and under the California statute the justice had control of all subsequent proceedings in the case. As defendant was in default for want of appearance and answer, the justice had jurisdiction over him, and all subsequent proceedings were mere irregularities, which did not defeat the justice’s‘jurisdiction. See Morrow v. Weed, I Iowa, 77.
The judgment appears to be correct, and it is affirmed.