Ebersole v. Ware

• Decision Date: 21 October 1882
• Citation: 13 N.W. 844,59 Iowa 663
• Court: Iowa Supreme Court
• Parties: C. EBERSOLE & SON v. WARE.

59 Iowa 663

13 N.W. 844

C. EBERSOLE & SON

v.WARE.

Supreme Court of Iowa.

Filed October 21, 1882.

Appeal from Calhoun circuit court.

This is an action upon a book-account for $90. Suit was originally commenced before a justice of the peace against the appellant and one O'Connor. O'Connor accepted service of the original notice and made default, and judgment was rendered against him. The suit was commenced in Calhoun county, and the original notice was served on the appellant in Dubuque county. On the return-day the appellant appeared before the justice of the peace, and moved that the action be dismissed as to him upon the ground that he was an actual resident of Dubuque county, and never had been a resident of Calhoun county, and the court, therefore, had no jurisdiction as against him. The motion was overruled and appellant was held to be in default, and judgment was rendered against him. The cause was removed to the circuit court by writ of error, and the judgment of the justice was affirmed. Defendant appeals.Hurd & Daniels, for appellant.

M. D. O'Connell, for appellee.

ROTHROCK, J.

The amount in controversy being less than $100, the circuit court has certified the following question upon which it is said it is desirable to have the opinion of this court:

1. Does the jurisdiction of a justice of the peace in and for Calhoun county, Iowa, embrace a suit for the recovery of money against a firm, and the individual members of said firm, when said firm had its permanent and only place of business in said Calhoun county, and was engaged in business in said Calhoun county, and one member of said firm was an actual resident of said Calhoun county, and the other member an actual resident of Dubuque county, Iowa, on a simple account for goods, wares, and merchandise alleged to have been sold to, and work and labor alleged to have been performed for, said firm, and said member of said firm so actually residing in Dubuque county, Iowa, was served with the original notice in said suit in said Dubuque county, and not in Calhoun county, and said member of said firm residing in Calhoun county having been served with the original notice in said Calhoun county, and said actual resident of Dubuque county appeared before the justice upon the return-day and filed motion to dismiss the action as to him for want of jurisdiction, and showing his residence by affidavit; that is, has such justice jurisdiction in such case to render judgment against such actual resident of Dubuque county, Iowa?

It is proper to say that the record made by the justice does not show that any judgment was demanded against a partnership, and no such judgment was rendered. So far as appears from the record the demand was a joint demand made against the two defendants to the action, and the judgment rendered was against them, not as a...