147 Iowa 26 | Iowa | 1910
On April 7, 1908, the defendant, a resident of Buena Vista County, executed an order for a monument to be “delivered at Newell Cemetery about July or as soon as convenient thereafter, for which I agree to pay ($285) two hundred and eighty-five dollars, on delivery or give approved note due one year payable at Sac City, Iowa, and attorney fees if action is commenced. I also agree to furnish material for foundation if I have one put in. It is agreed that any justice of the peace may have jurisdiction on this order.” Notice claiming of her the purchase price “as justly due them on your contract,” and requiring her to appear before J. W. Nutter, a justice of the peace in Jackson Township, in Sac County, was served on defendant, and on the return day, November 30, 1908, she appeared and moved that the action be dismissed for want of jurisdiction. The cause was transferred to the justice court of W. Jackson, by whom the motion to dismiss was sustained. A writ of error to the district court was sued ont, and by it the ruling and dismissal of the justice reversed.
As the action was begun in a county other than that of defendant’s residence, the justice’s court was without jurisdiction, unless this was conferred in pursuance of section 4481 of the Code, which reads: “On written contracts stipulating for payment at a particular place, action may be brought in the township where the payment was agreed to be made.” Porter v. Welsh, 117 Iowa, 144; Baily v. Birkhofer, 123 Iowa, 59. Section 3496 of the Code, in the chapter relating to the venue of actions generally, provides that, “when hy its terms a written contract is to be performed in á particular place, action for a breach thereof may, except as otherwise provided, be brought in the county wherein such place is situated.” The effect of the statute first quoted is to make the last applicable to the courts of justices of the peace hy indicating the township in which suit shall be brought, so that
Appellee argues that, inasmuch as “payable” has reference to the indebtedness, it should be held to relate bade to the consideration, but the language of the instrument does not warrant that construction. Plainly enough, the payment if in cash was to be made on delivery. By this was meant on the occasion or time of delivery at the cemetery, but, at defendant’s option, she might execute a note provided (1) it be approved, (2) be made payable at Sac City, (3) due in one year, and (4) it stipulate for attorney fees in event of suit thereon. As defendant did not undertake to pay in money at Sac City, jurisdiction of the justice in Sac County necessarily depended on the stipulation with respect to the execution of the note. As