Winet v. Berryhill

| Iowa | Dec 18, 1880

Reck, J.

i. sotekiok nsdietíóu ol I. Tlic defendant filed a plea to the jurisdiction of the court, alleging that neither plaintiff nor defendant resides in the city of Cedar Rapids, nor in the townships wherein. the city is located, the plaintiff being a resident of Fayette county, and the defendant being a resident of Marion township, Linn county; that the action is not brought to recover personal property, nor is it founded upon an instrument of .writing for the payment of money at any particular place, and that service was not had upon the defendant in the township within which this action was brought. A demurrer to this defense was sustained. This ruling is the foundation of the first objection presented in argument by defendant’s counsel.

The question here presented involves the consideration of the territorial extent of the jurisdiction of the Superior Courts. The defendant insists that in civil actions it is confined to the township or townships in which the city is situated wherein the court is established, while the plaintiff maintains that in all civil cases, except appeals from justices of the peace, the jurisdiction is concurrent with the District and Circuit Courts throughout the county.

The statute under which Superior Courts are organized, (chapter 143, acts of Sixteenth General Assembly; Miller’s Code, page 130; McClain’s Statutes, page 140), provides as follows:

“ Section 6. Said court shall bave jurisdiction concurrent with the District and Circuit Courts, as now and hereafter provided by law, except where said courts respectively have exclusive jurisdiction, and except actions for divorce, and of all appeals and writs of error in civil, cases from justice’s courts within the township or townships in which the city is located, and by consent of parties from justice’s courts in other townships in the county, said appeals and writs of error to be taken in the same time and manner as if the same were taken to the Circuit Court, and the exclusive original jurisdiction to try and determine all actions, civil and criminal, for the violation of city ordinances, and all the jurisdiction conferred upon police courts, as now and heretofore provided by law, and all the jurisdiction co-extensive and concurrent with justices of the peace, in all actions, civil and criminal, as now are or may be hereafter provided by law, and for the trial of criminal actions shall be open at such times and under such rules as the court shall prescribe.”

The defendant’s counsel insist that the words of the section “ within the township or townships in which the city is located,” qualify the preceding clause relating to the jurisdiction of the court; that the section under this construction would read as follows:

“ Said court shall have jurisdiction concurrent with the District and Circuit Courts within the township or townships in which the city is located.” But this construction violates the rules of our language by extending the qualifying adjunct “within the township or townships in which the city is located ” to a subject not within the independent clause of the sentence wherein it is found. By supplying the words understood in this clause, the error of defendant’s construction is made apparent. The reading, with the words understood fully supplied, would be as follows: “ Said court shall have jurisdiction concurrent with the District and Circuit Courts as now and hereafter provided by law, except, etc., and [said court shall have jurisdiction, etc.], of all appeals and writs of error in civil cases from justice’s courts within the township or townships in which the city is located.”

Now, with the proper words suppled, it is very plain that the qualifying adjunct of the sentence in question cannot be applied to the subject of the clause preceding the conjunction. It is no less a violation of the rules of the language to so apply if when the words are understood and not expressed. The obvious meaning of the language of the section is that the Superior Courts shall have concurrent jurisdiction of cases originally brought therein throughout the counties, and of appeals and writs of error from justice’s courts held within the townships wherein the cities are situated. This point demands no farther consideration.

2. practice : venue? °£ oi affidavits. ■ II. After the demurrer to defendant’s answer was sustained, defendant filed his motion, supported by affidavits, for a change of venue, based on the alleged prejudice of the judge of the court, which was overruled. Thereupon defendant had leave to file an amended affidavit in support of his motion within the time fixed by the order granting leave to amend. New affidavits complying with the law were filed, to which exceptions were taken on the ground that the motion had been overruled, and the affidavits do not purport to be amendments of the old affidavits, but are new ones. The exceptions also assail 'the affidavits upon the ground of defects both in form and substance.

We think the proper way to amend a defective affidavit is to substitute a new one sufficient in form and substance. It would surely be improper to add to the words of the old affi- • davits by way of amendment, and while it might not be improper to supply the omitted parts in a'separate and new affidavit, it is surely the better practice to supply a new instrument which shall be perfect within itself.

The new affidavit was filed upon leave granted by the court. Of course the motion stood for decision when the amended affidavit was filed. The motion was held to be insufficient, because of defects in the original affidavits. The granting of leave to file' an amended affidavit suspended the decision upon the motion until it was filed. Plaintiff’s objections above stated were not well taken.

Other objections to the new affidavit, on the ground that it was defective in substance and is not sufficiently attested by the officer who administered the oath, have no foundation. The affidavit contained the substance, and is in the form, required by law. The officer’s certificate shows that a lawful oath vfras administered to the affiants.

3. —-: ‘‘'trial1!”0' III. Counsel for plaintiff insist that the motion for the change of venue came too late, for the reason that after the decision upon the demurrer defendant could not answer further, and, therefore, there was nothing to try, as plaintiff was entitled to judgment upon the pleading. This position is based upon Code, § 2732, which is as follows:

“ Matter in abatement may be stated in the answer or reply, either together with or without causes of defenses in bar, and no one of such causes shall be deemed to overrule the ■ other, nor shall a party after trial on matter of abatement lie allowed in the same action to answer or reply matter in bar.”

Counsel claim that the decision of the demurrer is the trial contemplated in this section. The term trial is applied to. the determination of issues of fact, not issues of law. Bouvier’s dictionary. This statute does not, therefore, prohibit a party filing a plea in abatement, which has been held bad on demurrer, to further answer.

IY. The defendant, pending the consideration of the motion for a change of venue and of a motion of plaintiff for judgment upon the demurrer, asked leave to file an answer, which was refused. This, decision, it follows from our ruling upon the preceding point, is erroneous. The defendant had a right to answer, which should not have been denied.

4. practice in courtYmiiof exceptions. Y. Plaintiff insists that the abstract does not purport to contain all the evidence or affidavits used in the case, and c^oes not .show the existence of a bill of excepEons. There was no evidence given in the case, an¿ the abstract sets out the affidavits filed in support of the motion for a change of venue. Nothing more is necessary in order to present the- points of the case. The judgment shows exceptions >to the decision of the court. A bill of exceptions is not necessary in this case.

Reversed.