Phinney v. Donahue

• Decision Date: 21 October 1885
• Citation: 25 N.W. 126,67 Iowa 192
• Parties: PHINNEY v. DONAHUE.
• Court: Iowa Supreme Court

67 Iowa 192

25 N.W. 126

PHINNEY

v.DONAHUE.

Supreme Court of Iowa.

Filed October 21, 1885.

Appeal from Webster circuit court.

Action upon a promissory note. There was a trial by the court and a judgment for the plaintiff. Defendant appeals.Wright & Farrell, for appellant, John Donahue.

A. N. Botsford, for appellee, Joseph Phinney.

ROTHROCK, J.

The amount in controversy is less than $100, and this court acquires jurisdiction of the appeal by the following certificate of the trial judge:

“The amount in controversy in this case is less than one hundred dollars, and it is desirable that the opinion of the supreme court should be had on the following points of law: Where the plaintiff's note on which suit was brought was executed by three persons, only one of whom was served with notice of suit, and fell due October 1, 1874, and was in terms made payable at a particular place, and suit was brought on said note before a justice of the peace in the place where the note was made payable, none of the defendants residing in the county where suit was brought, and two of them being non-residents of the state at the time suit was brought, and plaintiff, knowing that two of the defendants were non-residents of the county, but not knowing where the defendant afterwards served with notice resided, the original notice being signed by the justice, by him dated September 30, 1884, but the appearance day being by him left blank and remaining blank till after the notice came into the hands of the constable who served it, and there being no evidence that said blank was filled till more than ten years after the note became due, and said notice being handed to such constable, who was the constable of the township where suit was brought, by plaintiff on the thirtieth day of September, 1884, with the intention that it should be served at once; the appearance day named in said notice, the same having been filled in after it came into the hands of the said constable, being October 21, 1884, and the said notice being served by said constable on October 14, 1884, on the defendant in a county other than that where suit was brought; and in the same case, the same constable, previous to October 21, 1884, having returned another original notice of said suit dated October 14, 1884, with an acceptance of service written thereon signed by defendant, and dated October 15, 1884, the appearance day being the same in both notices, and the defendant appearing in court on October 21, 1884, in obedience to the notice dated October 14, and in obedience to none other, although the notice dated September 30, 1884, was then on file with said justice,--in such case can the following be held to be the law:

(1) Can it be held that suit was commenced on September 30, 1884, and hence that the statute of limitations had not run against the note sued on when suit was brought? (2) Can it be held that the notice stated September 30, 1884, was, when the same was handed by the plaintiff to the officer, an original notice at all? (3) Can it be held that the notice dated September 30, 1884, was handed for service to the officer of the proper county? In other words, what is desired is a construction of ...