McMeans v. Cameron

• Decision Date: 05 December 1878
• Citation: 51 Iowa 691,49 N.W. 856
• Parties: MCMEANS v. CAMERON.
• Court: Iowa Supreme Court

51 Iowa 691

49 N.W. 856

MCMEANS

v.CAMERON.¹

Supreme Court of Iowa.

Dec. 5, 1878.

Appeal from circuit court, Jones county.

Action commenced by attachment before a justice of the peace of Jones county against a resident of Benton county. Defendant's motion to dismiss for want of jurisdiction having been overruled, he answered, and, judgment having been rendered against him, he appealed to the circuit court, where defendant's motion, being renewed, was sustained, and judgment for costs rendered against plaintiff, and he appeals. Affirmed.J. Q. Wing, for appellant.

Remley & Ercanbrack, for appellee.

SEEVERS, J.

The ruling of the circuit court is in accord with Gates v. Wagner, 46 Iowa, 355, and Hamilton v. Millhouse, Id. 74, unless the filing of an answer before the justice makes a difference between those cases and the one at bar. But it was held in Boyer v. Moore, 42 Iowa, 544, that “under the Code the justice of the peace lacks jurisdiction of the subject-matter in such case.” The rule is well established that consent never confers jurisdiction over the subject-matter of an action. Affirmed.

ON REHEARING.

A rehearing is asked because all the points made by counsel for the appellant have not been determined in the foregoing opinion, and that a consideration thereof will demonstrate that we have reached an incorrect conclusion. It was believed, when it was determined that the justice had no jurisdiction of the subject-matter of the action, that it necessarily followed the circuit court obtained none by the appeal. This is said to be unsound, because the statute provides that “an appeal brings up a cause for trial on the merits, and for no other purpose. All errors, irregularities, and illegalities are to be disregarded under such circumstances if the cause might have been prosecuted in the circuit court.” Code, § 3590. The circuit court has jurisdiction of equitable actions. Now, suppose a justice of the peace should entertain jurisdiction of a purely equitable cause of action, and should enter a decree requiring the defendant to specifically perform a contract for the conveyance of real estate, and he should appeal therefrom to the circuit court, and therein move to dismiss the action because of such jurisdictional matter. Could the circuit court overrule the motion and enter a valid decree? We think not. The “errors, irregularities, and illegalities” mentioned in the statute mean something less than jurisdictional questions such as the present. We repeat again, jurisdiction of the subject-matter cannot be conferred by consent of parties, nor does a failure to raise it before the justice prevent the party...