Cooley v. Barker

• Citation: 98 N.W. 289,122 Iowa 440
• Parties: SIMON COOLEY, Appellant, v. WILLIAM BARKER AND C. D. LOKENBILL, Sheriff of Clarke County, Iowa Appellees
• Decision Date: 27 January 1904
• Court: Iowa Supreme Court

98 N.W. 289

122 Iowa 440

SIMON COOLEY, Appellant, v. WILLIAM BARKER AND C. D. LOKENBILL, Sheriff of Clarke County, Iowa Appellees

Supreme Court of Iowa, Des Moines

January 27, 1904

Appeal from Pottawattamie District Court.--HON. W. R. GREEN, Judge.

SUIT in equity to restrain the levy of an execution and the enforcement of a judgment rendered by a justice of the peace of Pottawattamie county, Iowa against a non-resident of that county, and afterwards transcripted to the district court of Pottawattamie county. The trial court dismissed the petition at plaintiff's cost, and he appeals.

Reversed.

John Lindt and Temple, Hardinger & Temple for appellant.

J. B Sweet and Stone & Tinley for appellees.

OPINION

DEEMER, C. J.

Plaintiff is a resident of Clarke county, Iowa. In the year 1898 he gave an order for lightning rods to an agent of Cole Bros., a co-partnership doing business at Council Bluffs, in Pottawattamie county. The rods were erected, and plaintiff refusing to pay therefor, an assignee of the contract brought action for the contract price before a justice of the peace in and for Pottawattamie county, and exhibited an instrument which, on its face, made the contract price payable at Council Bluffs, Iowa. A notice of the action, reciting that the contract was by its terms to be performed at Council Bluffs, was served upon plaintiff in Clarke county, Iowa; and, as he failed to appear before the justice of the peace on return day, a judgment was rendered against him for the contract price, which was afterwards transcripted to the district court of Pottawattamie county. Thereupon an execution issued, which was about to be levied upon plaintiff's property in Clarke county, whereupon this action was commenced in Pottawattamie county against the plaintiff in the judgment and the officer having the execution, to enjoin the levy thereof and to restrain the enforcement of the judgment.

Claim is made that the justice who rendered the judgment was without jurisdiction, for the reason that while the contract, as presented to him, was made payable at Council Bluffs, yet this provision was not in the contract when he signed it, and that it is in fact a forgery. This is denied and this denial raises an issue of fact, which must first be determined, before we reach the legal propositions involved. An examination of the record leads us to the conclusion that plaintiff's contention as to the facts is true, and that the instrument, when signed by him, did not contain this provision for payment at Council Bluffs. It was this provision, which, under our statute, gave the justice jurisdiction of the case. Without it, he had no jurisdiction of a resident of another county. Even if the defendant had appeared, this would not, under our decisions, have given the justice jurisdiction. But as he did not appear, but made default, that question is out of the case. A court which in fact has no jurisdiction cannot, by deciding that it has, confer upon itself the right to adjudicate a controversy. This is fundamental doctrine, although there are exceptions in some cases which come dangerously near overthrowing the rule. With these exceptions we have nothing to do in this case, save to say that they do not apply.

Appellees contend that the justice was required to determine this matter before rendering judgment, and that his finding is conclusive. This contention has support in a few jurisdiction, notably in New York, but to our minds is unsound in theory and vicious in its application. If the court in fact has no jurisdiction, its judgment is subject to attack whenever and wherever the question...