Loughren v. B.F. Bonniwell & Co.
| Decision Date | 15 November 1904 |
| Parties | JAMES LOUGHREN, Appellant, v. B. F. BONNIWELL AND CO., B. F. BONNIWELL, and C. E. ILIFF, Sheriff of Buchanan County |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. JAMES A. HOWE, Judge.
SUIT in equity to enjoin the collection of a judgment rendered in favor of defendant B. F. Bonniwell & Co. against plaintiff herein by a justice of the peace in and for Polk county Iowa. A temporary writ of injunction was issued, and, upon the filing of an answer, defendants moved to dissolve the temporary writ. The answer was a general denial of the allegations of the petition, but plaintiff offered testimony in support of the writ, and at the conclusion of the evidence the trial court dissolved the injunction and dismissed plaintiff's petition. Plaintiff appeals.
Affirmed.
H. W Holman and Charles Mackenzie, for appellant.
No appearance for appellee.
The action before the justice of the peace was upon a written contract, which, by its terms, was to be performed in Des Moines, Polk county, Iowa. An original notice, regular on its face, save that it was signed in the name of the justice with a stencil stamp, and dated November 1, 1902, was duly served upon the plaintiff herein in Buchanan county, Iowa--that being the place of his residence--returnable November 17 1902. Plaintiff did not appear in response to this notice, and judgment was rendered against him by default. This suit is not a direct, but a collateral attack upon that judgment; and the ground of the action is that the justice had no jurisdiction over plaintiff herein, for the reason that he did not sign the original notice with his own hand, and did not fill out the said notice before delivering it to the party who served it, but simply gave him a blank notice signed with a stencil stamp bearing a fac-simile of the justice's signature, which was afterward filled in and served upon the plaintiff. Fraud in obtaining the contract upon which the action before the justice was bottomed and in obtaining judgment is also pleaded, but neither of these matters is material to our inquiry in this case. If the justice had jurisdiction, plaintiff is precluded, by the judgment, from now pleading fraud in the procuring of the contract upon which the justice's judgment was bottomed. And there is no evidence of any fraud in obtaining the judgment before the justice.
The sole inquiry is, had the justice jurisdiction of the case brought before him? It is contended that the stencil signature of the justice to the original notice was no signature, and that the notice when it left the justice's hands was a mere blank piece of paper, which could not be validated by the act of a third person in filling out the notice. Section 4488 of the Code provides that an original notice in justice's court "must be subscribed by the plaintiff, his attorney, or the justice of the peace before whom it is returnable." It is contended that the word "subscribe" means to write under or to set one's hand to a writing, and that the signing by a fac-simile stencil stamp will not suffice. The better definition, we think, as applied to the word used as in the statute in question, is to set under or to write under, as opposed to a signature at some other place. It refers rather to the place of signature than to the manner thereof; that is to say, the signature must be at the end of the instrument, rather than at some other place. Of course, the instrument must be signed by a person authorized by statute, but this signature need not be made with pen and ink, or even with a pencil. A mark or signature made by another with authority, or even a printed signature, intended as such, has generally been held sufficient. Zacharie v. Franklin, 37 U.S. 151 (9 L.Ed. 1035); Shank v. Butsch, 28 Ind. 19; Compton v. Mitton, 12 N.J.L. 70; Vines v. Clingfost, 21 Ark. 309; Hamilton v. State, 103 Ind. 96 (2 N.E. 299, 53 Am. Rep. 491); Hawkins v. Chace, 36 Mass. 502; Brown v. Bank, 6 Hill 443 (41 Am. Dec. 755); Herrick v. Morrill, 37 Minn. 250 (33 N.W. 849, 5 Am. St. Rep. 841). Fac-simile stamps such as were used in this case are quite common in these days of haste and hurry, and courts have generally regarded such a signature as sufficient, and the equivalent of a signing with pen and ink or pencil. Herrick v. Morrill, supra; Streff v. Colteaux, 64 Ill.App. 179; Mezchen v. More, 54 Wis. 214 (11 N.W. 534); Scott v. Seaver, 52 Wis. 175 (8 N.W. 811). The statute does not require that the notice be subscribed by the parties named in their own proper handwriting, and it is generally held that such papers as an original notice are sufficient, even if the signature be a printed one. In re Walker, 110 Cal. 387 (42 P. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104, 42 P. 1082). There is no reason why an original notice, which in this State is not a writ or process issuing out of court, should be signed by the person authorized, in his own proper hand writing. The instrument is nothing but a notice, which may be signed not only by a justice, but by the party or his attorney, without the knowledge or consent of the justice, and in either event it is sufficient, if properly subscribed. This subscription may therefore be by a fac-simile stencil, if the signature, when affixed at its proper place, is...
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