Rummel v. Dealy
| Decision Date | 21 December 1900 |
| Citation | 84 N.W. 526,112 Iowa 503 |
| Parties | BEN RUMMEL et al. v. WM. DEALY et al., Members of the Board of Supervisors of Sioux County, Iowa, Appellants |
| Court | Iowa Supreme Court |
Appeal from Sioux District Court.--HON. F. R. GAYNOR, Judge.
ACTION to compel a recanvass of votes in certain townships of Sioux county, Iowa. Judgment for plaintiffs, and defendants appealed.
Affirmed.
Hatley & Irwin for appellants.
John B Van Dyke for appellees.
The facts of this case appear by stipulation, and it appears that Buncombe and Capel townships are voting precincts in Sioux county, Iowa; that the defendants were members of the board of supervisors of said county in 1898; that at the general election in 1898 the judges of election in said townships failed and neglected to properly certify and authenticate the election returns from said townships, and that in consequence thereof the board of supervisors in November, 1898, when canvassing the election returns in said county, refused to canvass the returns from said townships; that while said board of supervisors was still in session at its November session, 1898, the judges of election appeared and asked of said board to be permitted to correct any errors committed by them in the authentication of the returns, which request the said board refused, and refused to consider the votes shown by said returns; that the refusal to canvass the returns from said townships, in addition to the effect thereof on other propositions and candidates voted for at said election, especially affected the result as to the office of supervisor from the supervisor district in which said townships are situated, and also the result as to two justices of the peace in each of said townships. The petition in this case was filed during the November term of the district court of Sioux county, 1898--Robert W. Olmstead county attorney, appearing for the defendants, and J. B. Van Dyke for the plaintiffs; and from the judgment entry it appears that after such appearance the parties proceeded to trial. The plaintiffs are 13 in number, and were voters and taxpayers in Buncombe township. There is a stipulation that any order made as to Buncombe township may be followed and made applicable to Capel township. The action is by mandamus to compel the board of supervisors to permit the authentication of the returns by the judges of election, and to recanvass the votes cast at the general election of 1898 and make return accordingly. It appears that at the trial in the district court the judges of election were present before the court and willing to certify said returns in due form, and they were permitted to do so. The court then gave judgment that a peremptory order of mandamus issue, requiring the defendants to reconvene and canvass the election returns as to the supervisor district and the townships in question, and to make returns to the court how they had complied with the order.
I. It is urged that the court had no jurisdiction to render judgment at the November term, 1898. This is upon the ground that the petition was filed during that term, and no notice was served on defendants. We think this claim is made under a mistake as to the facts, for it is said the county attorney appeared and objected and excepted to all that was done. The record shows that the county attorney appeared and stipulated the facts with the attorney for the plaintiffs, and that the parties proceeded to trial, and the record shows no objection whatever. It seems to be appellants' thought that parties may not appear during term time and prosecute an action to judgment, without waiting the time required by statute. The time fixed by the statute as to the notice, filing of pleadings, etc., is to enable parties to prepare for trial. But we know of no law or rule denying to parties who are prepared for trial the right to waive the provisions of the law in their favor, and by an appearance and consent proceed to trial, as was done in this case. There is no question as to jurisdiction of the subject-matter, and, when the parties appeared, jurisdiction of the persons attached, so that jurisdiction for the purpose of an adjudication was complete. Matter v. Phillips, 52 Iowa 232, 3 N.W. 49, does not support appellants' contention, because in that case the defendants' appearance was not voluntary, but in obedience to a rule of the court to show cause why an injunction should not issue, and it was not an appearance to the main case. By a demurrer they tested the sufficiency of the petition to warrant an injunction, and made no further appearance. It is, without doubt, the rule that, where a petition is filed during a term, that...
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