Porter v. Welsh

• Decision Date: 21 May 1902
• Citation: 90 N.W. 582,117 Iowa 144
• Parties: PORTER v. WELSH, SHERIFF, ET AL.
• Court: Iowa Supreme Court

117 Iowa 144

90 N.W. 582

PORTER

v.WELSH, SHERIFF, ET AL.

Supreme Court of Iowa.

May 21, 1902.

Appeal from district court, Johnson county; M. J. Wade, Judge.

Action in equity to set aside and cancel a judgment rendered in the district court of Johnson county against the plaintiff at the suit of one Holdeman. Upon trial to the court the relief asked was denied, and plaintiff appeals. Reversed.Henry E. Porter, for appellant.

Samuel H. Fairall, for appellee.

WEAVER, J.

In February, 1899, Holdeman obtained judgment against the present plaintiff before a justice of the peace of Johnson county. Plaintiff appeared in such action, and made defense against Holdeman's claim, but raised no question as to the jurisdiction of the justice. She appealed from the judgment against her to the district court, and upon trial in that court asked leave to amend her answer, and plead that when sued before the justice of the peace she was a resident of Muscatine county, and that said justice had, therefore, no jurisdiction to entertain the suit. Leave to amend was denied, and, the trial proceeding, judgment was again rendered in Holdeman's favor. The present case is brought in equity to set aside the judgment thus obtained as being void for want of jurisdiction in the court to render the same.

In view of the concession in appellee's argument that at the time appellant was sued before the justice of the peace she was in fact a nonresident of Johnson county, the majority of the court is of the opinion that appellant's contention is sound, and that she is entitled to the relief demanded. If we were at liberty to treat it as an original question in this state, we might reach a different conclusion, but the point raised by the appeal has already been authoritatively passed upon, and we see no sufficient reason for refusing to adhere to these precedents. McMeans v. Cameron, 51 Iowa, 691, 49 N. W. 856;Ebersole v. Ware, 59 Iowa, 663, 13 N. W. 844. So far as jurisdiction of the person is concerned, objection thereto can always be waived, and a party going to trial without such objection cannot raise it thereafter. But where the court has no jurisdiction of the subject-matter of the controversy, consent will not confer it, and the right to raise the objection continues through every stage of the proceedings. Cerro Gordo Co. v. Wright Co., 59 Iowa, 485, 13 N. W. 645; Walters v. The Mollie Dozier, 24 Iowa, 192, 95 Am. Dec. 727; Groves v. Richmond, 53 Iowa, 570, 5 N. W. 763;Burlington University v. Stewart's Ex'rs, 12 Iowa, 442;Orcutt v. Hanson, 71 Iowa, 514, 32 N. W. 315. This court has held that a justice of the peace has no jurisdiction of the subject-matter of claims for the recovery of money against actual residents of any other county than the one in which such justice resides. Code, § 4476; Boyer v. Moore, 42 Iowa, 544; McMeans v. Cameron, supra. See, also, Hamilton v. Millhouse, 46 Iowa, 74;...