Baily v. Birkhofer

• Decision Date: 12 February 1904
• Citation: 98 N.W. 594,123 Iowa 59
• Parties: A. E. BAILY, Appellant, v. FRANK BIRKHOFER, Appellee
• Court: Iowa Supreme Court

98 N.W. 594

123 Iowa 59

A. E. BAILY, Appellant, v. FRANK BIRKHOFER, Appellee

Supreme Court of Iowa, Des Moines

February 12, 1904

Appeal from Pottawattamie District Court.--HON. O. D. WHEELER Judge.

Plaintiff brought action before a justice of the peace in and for Pottawattamie county, Iowa, on a promissory note signed by defendant. Judgment was rendered for defendant, and plaintiff appealed to the superior court of the city of Council Bluffs. Either by agreement or upon motion the case was transferred to the district court of Pottawattamie county for trial. When the case reached that court, defendant interposed a plea to the jurisdiction, based upon the fact that defendant was a resident of Crawford county when the action was brought before the justice, and at all times thereafter. Plaintiff did not reply to this plea, but filed an affidavit of his counsel to the effect that defendant through his counsel agreed to a trial in the district court, and by his conduct is estopped from interposing such plea. A hearing was then had on this issue, resulting in a finding that the district court had no jurisdiction. Plaintiff appeals.

Affirmed.

Fremont Benjamin for appellant.

Flickinger Bros. and P. W. Harding for appellee.

OPINION

DEEMER, C. J.

The note on which the action was brought was dated at Council Bluffs, Iowa, although signed by defendant in Crawford county. The post office of the maker is given as Dow City, which is in Crawford county, of which fact we must, of course, take judicial notice.

The maker promised to pay the sum named at "the First National Bank." No other designation of the place of payment appears upon the instrument, except a printed memorandum on the margin reading, "Corner Main Street and First Ave." These words were not part of the note. But, if so treated, it is manifest that they give no indication as to the place of payment. We do not take judicial notice of the names of streets and public places in the towns and cities of the state. So that the first question in the case is, is the note by its terms, payable in Pottawattamie county, Iowa? If yes, then the justice had jurisdiction, under the provisions of our statutes. If no, then he had no jurisdiction, and, having none, the district court could not hear and determine the controversy. This has been so many times determined by us that it is useless to do more than cite the latest case on the subject. It is Porter v. Welsh, 117 Iowa 144, 90 N.W. 582. That case also decides that defendant's appearance before the justice, and his failure to raise the question there, does not give the district court jurisdiction. The contract sued upon must, by its terms, provide for payment at a particular place, before a justice at that place may take jurisdiction of an action against a resident of another county. It was not the intention of the statute (Code, section 4481) to authorize the suing of a defendant in a county where by implication, merely, he was to make the payment. Hunt v. Bratt, 23 Iowa 171.

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