Fernekes v. Case

• Decision Date: 08 September 1888
• Citation: 75 Iowa 152,39 N.W. 238
• Parties: FERNEKES ET AL. v. CASE ET AL.
• Court: Iowa Supreme Court

75 Iowa 152

39 N.W. 238

FERNEKES ET AL.

v.CASE ET AL.

Supreme Court of Iowa.

September 8, 1888.

Appeal from district court, Dickinson county; GEORGE H. CARR, Judge.

Action by J. Fernekes & Bros. against A. Case and James Hildredge upon an account for goods and merchandise sold and delivered. There was a demurrer to the petition, which was sustained, and plaintiffs appeal.J. W. Cory, for appellants.

Orson Rice and Parker & Richardson, for appellees.

ROTHROCK, J.

1. The last item of the account upon which the action was brought was dated June 24, 1881. The cause of action would therefore have been barred on the 24th day of June, 1886. Code, §§ 2529, 2531. An action is deemed to be commenced, within the meaning of the statute of limitations, on the day when the original notice is delivered to the sheriff for service with intent that it be served immediately. Id. § 2532. The original notice in this case was delivered to the sheriff, and was served upon the defendants on the 1st day of May, 1886. This was within the five years' limitation fixed by statute.The notice required the defendants to appear and defend before noon of the first day of the August term, 1886, of the circuit court of Dickinson county, to commence on the 30th day of August, 1886. The judges of the district had made a rule that all parties should appear before noon of the first day of the term to which they were cited to appear. The August term, 1886, of said circuit court, did not commence on the 30th day of that month. It commenced on the 31st day of the month. The notice, in so far as it fixed the date of the commencement of the term, was founded in mistake, and might be said to be misleading. The cause was continued at the August term, and another original notice was served upon the defendants. This last notice was delivered to the sheriff more than five years after the last item of the account accrued. The defendants appeared at the next term after the last-named notice was served, and demurred to the petition upon the ground that the action was barred by the statute of limitations. Appellant contends that the court erred in sustaining the demurrer. We think the question must be determined by the proper effect to be given to the first notice, and the true inquiry is, did the first notice give the court jurisdiction of the defendants, so that if, at the August term, the court had rendered a judgment by default against them, the judgment would not have been void for want of jurisdiction? In other words, could a judgment by default have been...