Central Iowa R'y. Co. v. Piersol

• Decision Date: 17 March 1885
• Citation: 22 N.W. 648,65 Iowa 498
• Parties: THE CENTRAL IOWA R'Y CO. v. PIERSOL ET AL
• Court: Iowa Supreme Court

22 N.W. 648

65 Iowa 498

THE CENTRAL IOWA R'Y CO. v. PIERSOL ET AL

Supreme Court of Iowa, Council Bluffs

March 17, 1885

Appeal from Cerro Gordo Circuit Court.

DEFENDANT Piersol, is a justice of the peace. He entered a judgment against plaintiff in favor of defendant, J. J. Clough, and an execution was issued thereon and placed in the hands of defendant, G. M. Strong, who is constable. Plaintiff brought this action to enjoin the enforcement of said judgment. A temporary injunction was allowed by the judge of the circuit court in vacation, but on the final hearing of the cause this order was vacated, and plaintiff's petition was dismissed. Plaintiff appeals.

AFFIRMED.

H. E J. Boardman, J. H. Blair and A. C. Daly, for appellant.

Cliggett Miller & Cliggett and P. G. Dougherty, for appellees.

REED J. ADAMS, J., dissenting.

OPINION

REED, J.

The judgment sought to be enjoined was rendered in an ordinary action on a money demand. The action was regularly commenced by the service of notice on the defendant. The case was set for trial at 9 o'clock A. M., on the eighteenth of June, 1881. The plaintiff in the action and his attorney appeared at the office of the justice before whom it was pending, at 9 o'clock, or soon thereafter. The cause was called at some time between 9 and 10 o'clock, and the justice stated to the plaintiff's attorney that, as there was no appearance for defendant, he would enter judgment for plaintiff by default. The action was on an account, an itemized statement of which, duly verified, was filed with the justice, so that, in case the defendant made default, it would be unnecessary for the plaintiff to introduce any evidence to establish his claim. The justice opened his docket for the purpose of making the necessary entry therein, but, as he was desirous of going to a neighboring town that morning by the train, and as he heard the train coming before he completed the entry, he closed the docket, stating to the attorney that he would do whatever else was necessary to be done in the case after he returned in the afternoon.

There is some conflict in the evidence on the question as to whether the default was entered of record before the justice left his office; but we think a preponderance of the evidence shows that it was not entered at that time. The justice left his office at 9 o'clock and 50 minutes, and between that time and 10 o'clock an attorney for the defendant in the action appeared at the office for the purpose of appearing in the action for the defendant, and making defense therein. He examined the justice's docket, and, finding that no judgment had been entered against his client, and not finding the justice at his office, he left the office after 10 o'clock, and gave the case no further attention on that day. The justice returned to his office at 3 o'clock in the afternoon, and then completed the judgment entry in his docket. The attorney for the defendant did not learn that the judgment had been entered until the twenty-seventh of June. He then wrote to the justice, complaining of his action, and insisting that the judgment was void, and threatening to institute a personal action against him for damages unless the judgment was canceled. After some further correspondence between the parties, the justice, on the eighth of July, entered on the record of the judgment an order to the effect that it was canceled by request of the defendant, on the claim that the judgment was void, because rendered by default before the expiration of the time within which defendant had the right to appear and defend.

The ground upon which plaintiff seeks to enjoin said judgment is that, as it was entitled to appear in the case and make its defense at any time before 10 o'clock on the appearance day, and as it did appear at the office of the justice within that time for the purpose of making its defense, and was only prevented from doing so by the absence of the justice, he ceased to have jurisdiction of it, and the judgment which he subsequently entered is void for that reason. We think however, that the position is not tenable. The action, as we have seen, was regularly commenced. The justice had jurisdiction of the case and of the parties. If he had entered the judgment in his docket before 10 o'clock, his action would have been erroneous, but the judgment would not have been void. Cory v. King, 49 Iowa 365. In doing so, he would have been acting within his jurisdiction, but...