Marengo Sav. Bank v. Byington

• Decision Date: 10 June 1907
• Citation: 135 Iowa 151,112 N.W. 192
• Parties: MARENGO SAVINGS BANK v. BYINGTON, JUDGE OF THE DISTRICT COURT OF IOWA COUNTY.
• Court: Iowa Supreme Court

135 Iowa 151

112 N.W. 192

MARENGO SAVINGS BANK

v.BYINGTON, JUDGE OF THE DISTRICT COURT OF IOWA COUNTY.

Supreme Court of Iowa.

June 10, 1907.

Original proceeding by certiorari.

An action in equity instituted by one Ridings against the Marengo Savings Bank, the plaintiff in the present proceeding, was pending in the district court of Iowa county during the October term thereof, 1906, and on the 17th day of November, which was a date prior to the beginning of the next term of court in that county, the judge, who is the defendant in this proceeding, filed with the clerk a finding in the case that the equities were with the plaintiff, and directed that plaintiff prepare a decree in conformity with such finding, and present it to counsel for defendant for approval before signature by the court. On the 28th day of December following (which is recited in the decree as “being of the regular October term, 1906,” of said court), a formal decree was signed by said judge, which on the next day was filed with the clerk. On the same day on which this decree was signed counsel for the defendant in that action filed with the clerk objections to said decree, one of which was that the judge had no power to render a judgment or enter a decree as of the date November 17, 1906, and had no power or jurisdiction at the time the final decree was signed to make and enter a judgment and decree in said action, and defendant especially objected to having said decree entered as of the date of November 17, 1906. This is a proceeding by certiorari to have the decree filed December 29, 1906, annulled.

Decree annulled.

C. Hedges and Popham & Havner, for plaintiff.

Tom. H. Milner and Thos. Stapleton, for defendant.

McCLAIN, J.

The records of the district court of Iowa county at its October term show regular adjournments to the succeeding day or a succeeding date, until November 13th, when, as the record recites, “Tuesday morning, November 13, 1906, court convened as per adjournment, and continued in session during the day when it adjourned.” A subsequent order adjourning the term sine die, signed by the defendant is of record, reciting the 31st day of December, 1906, as the date of such order, and bearing file mark showing its filing on January 1, 1907. The contention for the plaintiff in this proceeding is that the entry of date, November 13, 1906, amounted in law to a final adjournment of the October term, and that the judge was without jurisdiction to transact further busi ness as of that term. The terms of the district court for each county are to be as fixed by the judge or judges of the district in which the county is included. Code § 229. There is no question as to the fact that by proper order of the judge the October term of the district court of Iowa county was fixed to commence on the 8th day of October, 1906, and that the succeeding term was fixed to commence in January. It is further provided (Code, § 238) that “upon any final adjournment of the court all business not otherwise disposed of shall stand continued.” If the entry of November 13th was a final adjournment of the court, then the case of Ridings v. Marengo Savings Bank then pending in that court was continued until the January term. Being so continued, no judgment or...