Gross v. Sioux County

11 F. Cas. 76, 2 Dill. 509

• Court: U.S. Circuit Court for the District of Northern Iowa
• Decided: July 1, 1873
• Status: Published

Opinion

DILLON, Circuit Judge.

The plaintiff’s assignor brought suit in Dubuque county against the county of Sioux upon its ordinary warrants, payable at its own treasury upon service of process made in Polk county upon the chairman of the board of supervisors of the defendant. The suit was brought in the wrong county, but if the service upon the defendant was sufficient and it did not move to change the venue to the proper county, the judgment would, under the statute of Iowa, be valid. Revision 1860, § 2802.

The only question now before the court is, had the Dubuque district court jurisdiction of the county? If it had, the fourth count of the answer is bad; if it had not, that count presents a good defence, and the demurrer thereto should be overruled. The law then in force respecting the mode of service upon a county was section 2824 of the Revision, which provides: “If a county is defendant, service (of the original notice) may be made on the county judge or clerk of the county court.” This section was enacted when the county judge was the fiscal agent of the county and had the general management of its affairs. In 1S60 the legislature abolished the system of managing the county affairs by a county judge, and adopted instead thereof the supervisor system. The board of supervisors, consisting of a member from each civil township of the county, transact the business of the county at regular or special meetings, and there were devolved upon the county board of supervisors the jurisdiction and powers of the county judges. Revision 1860, pp. 48-53.

There was no special act changing the mode of making service upon counties until 1S70, when section 2824. supra, was amended thus: “If a county is defendant, service may be made on the chairman of the board of supervisors or county auditor.” Laws 1870, p. 209. But this enactment was after the rendition of the judgment now before us, and the question must be decided upon section 2824 as it originally stood. And upon reading the acts respecting the board of supervisors, we find no provision substituting the chairman of the board, who is simply its presiding officer, in the place of the county judge, or investing him with the powers or functions of that officer. If service of notice against the county could be made upon the supervisors at all, it must be made upon the board. Previous to the act of 1870, there was, so far as we can discover, no more authority -to serve the chairman of the board than any other member of the board. Under these views, the court would have acquired no jurisdiction over the county had the chairman been served with notice within the county.

We are also inclined to the opinion that there was no authority of law to make service upon the chairman of the board when absent from his county. The statute contemplates that personal actions in the state courts shall be brought within the county where the defendant resides, and the official duties of the county officers are to be performed at home. Was it the intention of the legislature that the county judge or the county clerk, or, since 1S70, the chairman of the board, or county auditor, could be served with process when away for businéss or pleasure, hundreds of miles from his official home, the place where he discharges his official duties and exercises his official powers? We doubt it; but it is unnecessary to place our judgment upon this ground or give any positive opinion upon it. See Board of Supervisors v. Young, 31 Ill. 194. Demurrer overruled.

See Lynde v. Winnebago Co., 16 Wall. [83 U. S.] 1872.