Hulburd v. Eblen

• Decision Date: 24 September 1948
• Docket Number: 47259.
• Citation: 33 N.W.2d 825,239 Iowa 1060
• Parties: HULBURD v. EBLEN et al.
• Court: Iowa Supreme Court

33 N.W.2d 825

239 Iowa 1060

HULBURD v. EBLEN et al.

No. 47259.

Supreme Court of Iowa

September 24, 1948

L. W. Powers and L. V. Gilchrist, both of Denison for appellant.

Jones Cambridge & Carl, of Atlantic, for appellees.

HALE Justice.

The petition in this action asked for damages alleged to have been sustained by plaintiff as a result of a collision between an automobile driven by him and a semi-trailer truck owned and operated by Frank Eblen, now deceased, who was doing business under the name of the Eblen Construction Company. To plaintiff's petition defendant filed a special appearance. The collision occurred in Crawford county on March 27, 1947, resulting in injuries to plaintiff and his wife, and the death of his minor son.

Frank Eblen lived in Cass county. He died on June 26, 1947, and on July 5, 1947, Imo Eblen was appointed executrix of his estate. (She is named in the proceedings as administratrix, but no objection is made to her official designation.)

The petition was filed in Crawford county on September 9, 1947. On September 11, 1947, plaintiff filed a claim for damages incurred in the collision in probate proceedings in the Frank Eblen estate in Cass county district court. This filed claim says, in part: 'The claim will be liquidated and the exact amount due the claimant judicially determined in an action now pending in the district court of Crawford county Iowa.'

The special appearance alleges (1) that the Crawford county court has no jurisdiction (a) for the reason that the action is against the personal representative of Frank Eblen, deceased, whose estate is being administered by the district court of Cass county, which county and court has exclusive jurisdiction of the subject matter; (b) that the action constitutes a claim against the estate of Frank Eblen, deceased, of which only the district court of Cass county has jurisdiction; (c) that the defendant, Eblen Construction Company, was only a trade name under which Frank Eblen operated his business (about this proposition there is no dispute); (d) that this action was instituted after the opening of administration of the estate of Frank Eblen, deceased, in the Cass county district court, and the Crawford county district court has no legal means of acquiring jurisdiction of said estate; (e) is, in substance, the same as the division designated 'd' (f) that the court does not and cannot acquire jurisdiction of Imo Eblen as a personal representative of the Frank Eblen estate; and (g) that this is an action in rem against the estate of Frank Eblen of which Cass county district court has exclusive jurisdiction. The special appearance is supported by affidavits.

The district court sustained the special appearance and dismissed plaintiff's petition. Plaintiff appeals and assigns as error (1) that the court erred in dismissing plaintiff's petition for lack of jurisdiction, for that under section 616.18, Code of 1946, actions arising out of injuries to a person or damages to a property caused by the operation of any motor vehicle may be brought in the county where the damage or injury is sustained; (2) that the court erred in holding that the district court of Cass county had exclusive jurisdiction, and in holding that section 616.18, Code of 1946, did not authorize the Crawford county district court to determine the issues raised by plaintiff's petition; (3) erred in holding that the issues raised involved either the granting of administration, the appointment of the executrix, or the management and disposition of property or settlement of estate, and in holding that the Cass county district court had exclusive jurisdiction to determine the issues raised by virtue of the provisions of 604.3 and 604.4, Code of 1946; that the court erred in dismissing plaintiff's petition for the reason that there is only one court in Iowa, the District Court, and for the reason that under section 616.18, Code of 1946, the Crawford county district court had jurisdiction. Plaintiff argues these various assignments of error in one division.

I. Plaintiff's argument is based on section 616.18 of the Code. This is a section of the Chapter entitled 'Place of Bringing Actions,' and refers to venue The section does not relate to jurisdiction but only to the place in which the action may be tried. We should keep in mind the distinction between venue and jurisdiction. The definition of jurisdiction is made in Franklin v. Bonner, 201 Iowa 516, 518, 207 N.W. 778, 779, and was cited and quoted by the district judge in this case in his written opinion.

'Courts constitute the agency by which judicial authority is made operative. The element of sovereignty known as judicial is vested, under our system of government, in an independent department, and the power of a court and the various subjects over which each court shall have jurisdiction are prescribed by law. We are dealing here with a question of 'jurisdiction,' which may be defined as the power conferred upon a court to take cognizance of and to decide cases in law, equity, or special proceedings, and to carry its judgments and decrees into execution.

'In brief, jurisdiction is the lawful exercise of judicial authority, and involves two elements: (1) The subject-matter of the action or proceeding, and (2) the parties thereto. Jurisdiction of the subject-matter is given to a court solely by the law. Consent cannot confer the right. Jurisdiction over the person is acquired by the service of process upon the defendant as defined by law, or by his voluntary submission to the jurisdiction of the court. The object of process is to give a person notice that an action or proceeding has been commenced against him and to afford him opportunity to contest the claim of the adverse party.'

In the written opinion of the district court in this case the distinction is thus clearly made: 'Jurisdiction, as contrasted with venue, refers to the power of the court to decide an issue on its merits, whereas venue refers to the place where the cause sued upon should be tried.' With this distinction in mind we may consider the statute relating to the probate court, being section 604.3, Code of 1946, as follows:

'The district court of each county shall have original and exclusive jurisdiction to:

'1. Probate the wills of, and to grant administration upon the estates of, all persons who at the time of their death were residents of the county, and of nonresidents of the state who die leaving property within the county subject to administration, or whose property is afterwards brought into the county.

'2. Appoint guardians of the persons and property of all persons resident in the county subject to guardianship.

'3. Appoint guardians of the property of all such persons nonresidents of the state who have property within the county subject to guardianship, or whose property is afterwards brought into the county.'

Following is section 604.4, referring further to the jurisdiction of the district court in probate. 'It shall have jurisdiction in all matters in relation to the appointment of executors and trustees, and the management and disposition of the property of and settlement of such estates; provided that where jurisdiction has heretofore been acquired, the same...