Paddleford v. Cook

38 N.W. 137, 74 Iowa 433, 1888 Iowa Sup. LEXIS 23

• Court: Supreme Court of Iowa
• Decided: May 14, 1888
• Status: Published

Opinion

Beck, J.

*• peácon^ied to dismiss!?:14 answering. I. The petition was not filed until after the time fixed therefor in the notice. The defendant moved the court, on this ground, to dismiss the action. The motion was overruled and an exception taken to the ruling. Thereupon defendant answered the petition, denying its allegations and averring payment in full for the land, and that the deed did not express the true consideration agreed to be paid for it.

II. It is first insisted^that the district court erred in overruling the motion to discontinue the case. This position is undoubtedly correct. Code, section 2600, provides that, if the petition is not filed within the time fixed in the notice, it “will be deemed discontinued.”

III. But, upon the refusal of the district court to dismiss the petition, it was still pending. Defendant, by his answer, appeared to the action, and waived the irregularity in the notice or filing of the petition, just as he would have waived the want of a notice 'had he answered without service upon him. The pendency of the petition gave the court jurisdiction of the subject-matter of the action, and the appearance by answer gave it jurisdiction of the person of defendant.

IY. It cannot be said, as is claimed by defendant’s counsel, that the court had no jurisdiction of the case, and that appearance did not confer it. It did have jurisdiction of the case, for the petition, which is the foundation of the jurisdiction of the subject-matter, was pending when defendant filed his answer. Appearance to insist upon the discontinuance of the canse would not have given the court jurisdiction of the person of defendant (Cibula v. Pitt’s Sons’ Manuf. Co., 48 Iowa, 528), but by an appearance to plead to the action and enter full defense, the defendant surrenders himself to the jurisdiction of the court. No decision of this court is in conflict with these views.

2. EVTD'ENO'Rt value of land contract pried Y. Evidence was admitted, against defendant’s objection, tending to show the value of the land. In our opinion, it was pertinent and competent. x x The issues involved the question as to the sum to be paid under the oral contract, "*■ ' which was in dispute. The evidence as to the value of the land would have some bearing on this question, as the inference might be drawn that the parties probably were guided, in fixing the consideration to be paid for the land, by its value. Johnson v. Harder, 45 Iowa, 677.

__ ' no”shovvntent YI. A witness for defendant was asked to state what was said by the parties, at a specified time, in regard to the transaction. It does not aPPear what evidence was expected to be elicited by the question. Under familiar rules recognized by this court, we cannot hold the exclusion of evidence to be erroneous, when the character or effect of such evidence is not shown. No such showing is made, nor does it appear that the witness could have made any response to the question if permitted to answer it.

4. Appeal: pracSons not™" exoepted to. VII. Instructions given to the jury are complained °^> ^Ut it n°t S^0WI1 that exceptions Were taken to them. We cannot therefore congider the objections thereto urged by defendant’s counsel.

VIII. The verdict is sufficiently supported by the evidence. These views cover all questions in the case. The judgment of the district court is

Aeeibmed.