Paddleford v. Cook

• Decision Date: 14 May 1888
• Citation: 38 N.W. 137,74 Iowa 433
• Parties: PADDLEFORD ET AL. v. COOK.
• Court: Iowa Supreme Court

74 Iowa 433

38 N.W. 137

PADDLEFORD ET AL.

v.COOK.

Supreme Court of Iowa.

May 14, 1888.

Appeal from district court, Story county; JOHN L. STEVENS, Judge.

Action by E. M. and C. L. Paddleford against John Cook to recover for land sold and conveyed by plaintiffs to defendant, the price being fixed by an oral agreement of the parties. There was a judgment on a verdict for plaintiffs. Defendant appeals.J. F. Martin, for appellant.

Funson & Gifford, for appellees.

BECK, J.

1. The petition was not filed until after the time fixed therefor in the notice. The defendant moved the court, on this ground, to dismiss the action. The motion was overruled, and an exception taken to the ruling Thereupon defendant answered the petition, denying its allegation, and averring payment in full for the land, and that the deed did not express the true consideration agreed to be paid for it.

2. It is first insisted that the district court erred in overruling the motion to discontinue the case. This position is undoubtedly correct. Code, § 2600, provides that, if the petition is not filed within the time fixed in the notice, it “will be deemed discontinued.”

3. But, upon the refusal of the district court to dismiss the petition, it was still pending. Defendant, by his answer, appeared to the action, and waived the irregularity in the notice or filing of the petition, just as he would have waived the want of a notice had he answered without service upon him. The pendency of the petition gave the court jurisdiction of the subject-matter of the action, and the appearance by answer gave it jurisdiction of the person of defendant.

4. It cannot be said, as is claimed by defendant's counsel, that the court had no jurisdiction of the case, and that appearance did not confer it. It did have jurisdiction of the case; for the petition, which is the foundation of the jurisdiction of the subject-matter, was pending when defendant filed his answer. Appearance to insist upon the discontinuance of the cause would not have given the court jurisdiction of the person of defendant, (Cibula v. Manufacturing Co., 48 Iowa, 528;) but by an appearance to plead to the action, and enter full defense, the defendant surrenders himself to the jurisdiction of the court. No decision of this court is in conflict with these views.

5. Evidence was admitted, against defendant's objection, tending to show the value of the land. In our opinion, it was pertinent and competent. The issues involved...