Taylor & Farley Organ Co. v. Plumb

10 N.W. 282, 57 Iowa 33

• Court: Supreme Court of Iowa
• Decided: October 22, 1881
• Status: Published

Opinion

Rothrock, J.

1theUpeace-0l renffre^triai. We do not understand that counsel for appellant claimed that there was any defect of jurisdiction in the justice of the peace in entertaining the action upon service by publication and in subjecting the money attached to the payment of the judgment. The only question which appears to us necessary to be considered is, did. the justice of the peace have jurisdiction to grant a re-trial, and order the repayment of the money to the appellant? A determination of this question involves an examination of several sections of the statute, which we will proceed to do. Section 2877 provides that “ where a judgment has been rendered upon service by publication only, without the appearance of the defendant, lie may at any time within two years appear and move to have the action re-tried, and security for costs being given, he shall be permitted to defend.” This provision appears to be applicable to judgments in the District and Circuit Courts. At least it may be said that this section does not of itself authorize a judgment rendered by a justice of the peace upon service by publication to be re-tried within two years. But by section 3516 it is provided that “the parties to the action (before a justice of the peace) may be the same as in the Circuit Court, and all the proceedings prescribed for that court, so far as the same are applicable and not herein changed shall be pursued in justice’s court.” Now if there is no section of the Code providing for the re-trial of an action before a justice of the peace where service has been had by publication, and the defendant did not appear, it would seem to follow that a re-trial should be allowed within two years under section 2877. If all the proceedings prescribed for the Circuit Court may be had in the justice’s court, of course, a motion for a re-trial within the prescribed time may be made, and a re-trial had. Such a proceeding cannot be said to be inapplicable to suits in a justice’s court. But it is claimed that section 3543 provides how and in what time all judgments in justice’s courts may be set aside. It is in these words: “judgment dismissing the cause, or by default, may be set aside by the justice at any time within six days after being rendered, if the party applying therefor can show a satisfactory excuse.”

A careful examination of this provision in connection with the sections before cited, together with the sections of the statute authorizing new trials in the district and Circuit Courts, when judgments by default are rendered upon personal services, lead us to the conclusion that section 3543 is only applicable when there has been personal service. It will be observed that section 2877 does not designate a judgment on service by publication as a judgment by default. It is not in fact a personal judgment unless there be an appearance. Under that section a party defendant has the right to appear and demand a re-trial without showing any excuse, satisfactory or otherwise. It surely ought not be held that because controversies in justice’s courts are less important than in courts of record that what would be regarded as a matter of right in one court should be denied or abridged in another, unless the law so expressly provides. It is true that the manner of acquiring jurisdiction of the property of the defe'ndant upon service by publication differs in the justice’s court, but the force and effect of the judgment is the same. If rendered without the appearance of the defendant it is but a judgment in, rem. Johnson v. Dodge, 19 Iowa, 106.

While we are free to admit the question is not devoid of difficulty, we think the construction we adopt is one fairly warranted, and accords more nearly with the law, which aims to do justice and give every person a reasonable opportunity to protect his rights. •

Reversed.