Reed v. City of Muscatine

73 N.W. 579, 104 Iowa 183

• Court: Supreme Court of Iowa
• Decided: December 18, 1897
• Status: Published

Opinion

Deemer, J.

1 There is but one question in the case which is of sufficient importance to be noticed in an opinion. The petition was filed on the twenty-second day of March, 1895; and it is alleged that the injury occurred on the twenty-fourth day of August, 1894, — more than six months prior to the filing of the petition. There is no allegation that plaintiff gave the defendant notice of the happening of the accident, as required by section 1, chapter 25, Acts Twenty-second General Assembly. Defendant did not demur to the petition, nor did it raise the question of want of notice, in any manner, in the trial court. It has filed in this court, however, what its counsel have seen fit to denominate a “motion to reverse the judgment and dismiss the case.” This motion is bottomed upon the proposition that the notice is jurisdictional, and that in the absence of allegations that notice was given, the trial court had no right or authority to hear the case, and that, as the question is jurisdictional, it may be raised for the first time in this court. “Jurisdiction” has been defined to be the “power to hear and determine the subject-matter in controversy between parties to a suit; to adjudicate or exercise any judicial power over them.” Rhode Island v. Massachusetts, 12 Pet. 718. It is conceded that the court had jurisdiction over the parties, but it is argued that it had no jurisdiction over the subject-matter. The subject-matter is that right which one party claims against the other, and demands judgment of the court upon. Jacobson v. Miller, 41 Mich. 93 (1 N. W. Rep. 1013). In this case it was the right which plaintiff had to compensation for injuries received through the negligence of the defendant. The district court had the right to consider the question, and therefore had jurisdiction of the subject-matter. In determining such questions, it is important to distinguish between jurisdiction of the general subject and jurisdiction of the particular subject; for, if it be found that the case under consideration belongs to the former class, then it is within the jurisdiction of the court, and neither insufficiency of allegation noi informality in proceedings -will affect that jurisdiction. See Brown, Jurisdiction, section 1; Yates v. Lansing, 5 Johns. 282; Hunt v. Hunt, 72 N. Y. 217. As said by Judge Elliott in his work on General Practice (volume 1, section 240), “Where there is authority to make a judicial inquiry, there is jurisdiction, .'and it is evident that this authority exists wherever there is power over a general class of cases.” The distinction is also pointed out in Brown, Jurisdiction, section 10. Objections to the jurisdiction of the general subject may be made at any stage of the proceedings, for they cannot be waived. But, as a general rule, if there is jurisdiction of the general subject there may be waiver of objections to the jurisdiction of the particular subject. That is to say, if the court has the right to decide the general class of cases to which the one in question belongs, its decision, although erroneous, cannot be collaterally attacked, and, if no objection or exception be taken it will be considered as waived. The difference between a right to decide and a right decision clearly and briefly illustrates the distinction we are trying to elucidate. We have a case where there is unquestioned authority over the general subject, but it is. claimed that there is no jurisdiction of the particular case, because of the absence of allegations as to notice. Such objection does not go to the jurisdiction of the subject-matter, but rather to the correctness of the decision in the particular case, and cannot be raised for the first time in this court. Plaintiff’s failure to give notice simply affects his right to recover, and does not go to the-jurisdiction of the court. The case is quite like that of Sheet v. City of Appleton, 49 Wis. 125 (5 N. W. Rep. 27), wherein it i-s held that failure to give notice simply affects the plaintiff’s right to sue, and does not deprive the court of jurisdiction of the subject-matter. See, also, Gould v. Hurto, 61 Iowa, 47; Bridgman v. Wilcut, 4 G. Greene, 563; Oskaloosa College v. W. U. Fuel Co., 90 Iowa, 387. None of the authorities relied upon by appellant announce a contrary doctrine. In each and every of them the question was raised in the trial court by demurrer, motion in arrest, or otherwise. The motion to reverse and dismiss is overruled.

2 Counsel present the same question in their brief as a reason for reversing the judgment. It is insisted that want of notice was raised by the motion for a new trial, under the assignment that' “the verdict is not sustained by sufficient evidence.” We do not think that this was sufficiently specific, but, if it was, the assignments of error do not properly raise ihe question. Duncombe v. Power, 75 Iowa, 185; Insurance. Co. v. Henderson, 38 Iowa, 450. Counsel also argue that it Was not necessary to raise the question in the trial court, and cite us chapter 96, Acts Twenty-fifth General Assembly, which says that “no pleading shall be held sufficient on account of a failure to demur thereto,” and also strikes out a provision of the Code of 1873, to the effect that, if an objection to a pleading is not raised by demurrer or waiver, it shall be deemed waived. We have heretofore held, in at least two cases, that, notwithstanding the provisions of this act, questions not made in the court below will not be considered on appeal. Boyd v. Watson, 101 Iowa, 214; Weis v. Morris, 102 Iowa, 327. No prejudicial error appears, and the judgment is affirmed.