Thompson v. Jackson

• Decision Date: 22 January 1895
• Citation: 61 N.W. 1004,93 Iowa 376
• Parties: E. B. THOMPSON v. T. H. JACKSON, et al., Appellants
• Court: Iowa Supreme Court

61 N.W. 1004

93 Iowa 376

E. B. THOMPSON v. T. H. JACKSON, et al., Appellants

Supreme Court of Iowa, Des Moines

January 22, 1895

Appeal from Palo Alto District Court.--HON. GEORGE H. CARR, Judge.

This is an action at law to recover damages for certain alleged wrongful acts of the defendants. There was a trial by jury. Verdict and judgment for the plaintiff. Defendants appeal.

Reversed.

C. E Cohoon and B. E. Kelly for appellants.

Soper Allen & Morling for appellee.

OPINION

Rothrock, J.

I.

The defendant T. H. Jackson was a justice of the peace, and C. B Jackson was a special constable. A judgment for two dollars and seventy-five cents and costs was entered on the docket of said justice against E. B. Thompson, plaintiff herein, and in favor of one Nolan. Execution was issued on the judgment, and it was served by C. B. Jackson, as special constable, by levying upon and selling certain hay in stack, the property of the defendant in execution. This action was brought to recover damages of the defendants, on the ground that the judgment was void for want of jurisdiction to render the same. It is averred in the petition that the hay levied upon was of the value of forty-four dollars, and that the "levy and sale were excessive." It is also charged in the petition "that said defendants acted in the premises in willful excess and abuse of their authority and of the process of the law, and fraudulently and maliciously and with oppression, and they conspired together in the premises to oppress this plaintiff, and defraud him, and to do damage aforesaid; that the defendants have in their possession the documents, papers, and judgment entry hereinbefore referred to, and the plaintiff is unable to set out copies thereof; wherefore the plaintiff demands judgment against the defendants for forty-four dollars, actual damages, and fifty dollars, exemplary damages, and costs." The judgment on the verdict against T. H. Jackson was for forty-six dollars and fifty-two cents, and against C. B. Jackson for ten dollars.

The first question presented goes to the jurisdiction of this court to entertain the appeal. It is claimed by appellee that the amount in controversy, as shown by the pleadings, does not exceed one hundred dollars, and that, as the trial judge did not certify questions for the determination of this court, the appeal should be dismissed. We have set forth part of the petition to show that the plaintiff claimed exemplary damages under proper averments, and demanded forty-four dollars actual damages, and fifty dollars exemplary damages. And the petition was afterwards amended by striking from the demand for judgment the sums of forty-four dollars and fifty dollars, and inserting in lieu thereof the sum of forty-nine dollars and one hundred and fifty dollars, respectively. So that, when the case was tried, the plaintiff demanded judgment for one hundred and ninety-nine dollars. The petition was not at any time before or after verdict amended by reducing the amount claimed. The thought of counsel for appellee is that the amount in controversy did not exceed one hundred dollars because the recovery of exemplary damages is not a matter of right, but that the amount thereof is left to the discretion of the jury. The defendants denied the averments of the petition charging them with malice and oppression and the cause was submitted upon pleadings which authorized a judgment for plaintiff for more than one hundred dollars. It is true it is not the amount named in the prayer of a petition that determines the amount in controversy; that question is settled by the body or charging part of the pleading. Cooper v. Dillon, 56 Iowa 367, 9 N.W. 302. If by the pleadings, and consistently therewith, a judgment might have been recovered for more than one hundred dollars, the case is appealable, with the certificate required by section is appealable, without the certificate required by section 3173 of the Code. Ormsby v. Nolan, 69 Iowa 130, 28 N.W. 569; Madison v. Spitsnogle, 58 Iowa 369, 12 N.W. 317. There is no doubt that the defendants had the right to appeal the case.

II. It appears from the record that the defendant T. H. Jackson was a country justice of the peace in Lost Island township, Palo Alto county. P. J. Nolan formerly lived in that vicinity, and removed to the state of Montana. He left some verified accounts with said justice of the peace for collection, among which was an account against E. B. Thompson, who resided in said township. He removed across the line of said township into Highland township, in the same county, in November, 1892. Shortly after his removal, Jackson issued an original notice on said account, and delivered it to a constable, and it was served on Thompson in Highland township. The justice made up his docket in proper form, and it shows affirmatively that the original notice was served in Highland township. Thompson made no appearance on the return day, and, as appears by the docket entry, the justice found that he was served with the notice "in the manner required by law in Highland township," and entered a judgment against him on the tenth day of December, 1892. Thompson gave no attention to the matter; and, on the twenty-fourth day of the same month, execution was issued, a levy was made, and the property was afterward sold.

The principal question arises upon the claim that Jackson had no jurisdiction to enter the judgment, and, because of the want of jurisdiction, he and the special constable are liable in damages for executing the judgment. Counsel for appellants contend that the justice had jurisdiction, or, rather, that the question of jurisdiction cannot be raised in a collateral proceeding. We think this position is not well taken. The statute defining the territorial jurisdiction of justices of the peace is not as explicit as it might be made. Section 3507 of the Code provides, in a general way, that the jurisdiction is coextensive with the county unless specifically restricted. Section 3509 is as follows: "Suits may in all cases be brought in the township where the plaintiff or defendant, or one of several defendants, resides." Section 3510 provides that suits "may also be brought in any other township of the same county if actual service on one or more of the defendants is made in such township." The plaintiff in the action was a nonresident of the county, and Thompson was not served with the original notice in the township where the suit was brought, and no jurisdiction was acquired by the service. Auspach v. Ferguson, 71 Iowa 144, 32 N.W. 249. This question was determined by the justice, and he decided that he had jurisdiction of Thompson.

The District Court instructed the jury upon this question as follows: "As to the defendant T. H. Jackson, you are told that, in the judgment of the court, it appears from the undisputed facts that the said Jackson had no jurisdiction of the person of the defendant in the action wherein P. J. Nolan was plaintiff, and the plaintiff, E. B. Thompson, was defendant; and that he had no jurisdiction to render the judgment of December 10, 1892, against the plaintiff in this case, and that in rendering the said judgment and in issuing an execution thereon, and in delivering the same to the officer, with instruction to levy the same, the said defendant acted without warrant or authority of law, and is liable to the plaintiff herein for such damages as he has sustained. It appears from the uncontroverted testimony that under the execution in question, a certain quantity of hay belonging to the plaintiff was levied upon and sold and converted by the purchaser, and the measure of the plaintiff's recovery would be the fair, reasonable market value of the said hay, as it was at the time and place levied upon, with interest on such sum at six per cent. per annum to date; and this will be the limit of plaintiff's recovery, unless you find that the defendant acted maliciously. As to the defendant T. H. Jackson, therefore, your verdict will be for the plaintiff, and against him,...