Chesmore v. Barker

• Court: Iowa Supreme Court
• Writing for the Court: GIVEN, J.
• Citation: Chesmore v. Barker, 101 Iowa 576, 70 N.W. 701 (Iowa 1897)
• Decision Date: 09 April 1897
• Parties: C. B. CHESMORE, Appellant, v. JOHN BARKER

70 N.W. 701

101 Iowa 576

C. B. CHESMORE, Appellant, v. JOHN BARKER

Supreme Court of Iowa, Des Moines

April 9, 1897

Appeal from Linn District Court.--HON. WILLIAM G. THOMPSON, Judge.

PLAINTIFF commenced this action before H. M. Sheldon, mayor of the town of Coggon, to recover seventy-seven dollars and fifty cents rent alleged to be due. An attachment was sued out, and certain corn, threshing machine, and other property of the defendant's taken and held thereunder. Defendant answered, denying that there was any rent due to the plaintiff, and setting up a counter-claim for damages for breach of contract, two hundred and fifty dollars, and for wrongfully suing out said attachment, for thirty dollars. Judgment was entered in favor of the defendant on the counter-claim for seventy-seven dollars and fifty cents, from which the plaintiff appealed to the district court. In the district court the plaintiff moved to strike said counter-claim, which motion was overruled, whereupon the case was tried to a jury, and a verdict and judgment rendered in favor of the defendant, from which plaintiff appealed to this court.

Reversed.

Giffen & Voris for appellant.

Richard A. Stuart for appellee.

OPINION

GIVEN, J.

I.

Plaintiff's motion to strike the counter-claim was upon the following grounds: "That this court acquires jurisdiction to hear and try this cause by appeal, and by appeal only, and has no original jurisdiction whatever, but must try and determine said cause upon said appeal made from the issues made in the lower court on matters of which the lower court had jurisdiction, and upon none other; and it appears upon the face of said counter-claim that the same, and the prayer thereof, and the relief asked therein for the same exceeded the jurisdiction of said justice of the peace, and was a matter of which the said justice had no jurisdiction whatever." Code, section 3508, defining the jurisdiction, is as follows: "Within the prescribed limit, it extends to all civil cases, except cases by equitable proceedings, where the amount in controversy does not exceed one hundred dollars; and, by consent of parties it may be extended to any amount not exceeding three hundred dollars." There is nothing to show that any objection was made in the mayor's court to its exercising jurisdiction as to the counter-claim. In Schlisman v Webber, 65 Iowa 114 (21 N.W. 209), this court held that, "as the consent of the parties to the jurisdiction is not required to be made a matter of record, the presumption is that such consent was communicated to the justice in some manner before he proceeded to take jurisdiction of the case." Under this ruling the motion was properly overruled.

II. The contract alleged to have been broken is claimed by defendant to be as follows: That he leased a certain farm from the plaintiff for the year 1894, by oral agreement, and that as a part of said contract the plaintiff agreed to furnish defendant with five or six milch cows, and some hogs, to be kept on the farm; that defendant should purchase the cows and hogs on time, and that plaintiff would sign as his security therefor, and ...