Hynds v. Fay Bros. & Co.

30 N.W. 683, 70 Iowa 433

• Court: Supreme Court of Iowa
• Decided: December 18, 1886
• Status: Published

Opinion

Adams, Oh. J.

-The case comes to us upon a certificate. In it the court sets out, in substance, the facts above stated, and the question is whether, under the circumstances, the plea to the jurisdiction of the justice was properly sustained. In answering the question, we have to say that we think it was. "Where the notice, as in this case, shows that the claim is for more than $100, and that the justice has no jurisdiction of the subject-matter, the defendant might properly disregard it. Nothing could be done by the plaintiff after-wards, in that action, by which the justice could, acquire jurisdiction. It is true, another notice might be served of a different character, and of a kind which would give the court jurisdiction, but that would be virtually the commencing of a new action.

The fact that the defendants appeared in this case, and demurred to the jurisdiction, did not give the court jurisdiction. The status of the case was not changed. The court should have taken notice, of its own motion, that he had no jurisdiction, and dismissed the case. Appearance never confers jurisdiction, where the subject-matter is not within the jurisdiction of the court. Nor could the plaintiff, in this case, properly claim that he subsequently gave the court jurisdiction of the subject-matter by the petition subsequently filed, and that the court had already jurisdiction of the person by appearance, because the appearance was made when the court lacked jurisdiction of the subject-matter, and when, virtually, there was nothing before the court.

We think that the case was rightly dismissed.

AFFIRMED.