Edgar v. Greer , 14 Iowa 211 ( 1862 )

Baldwin, C. J.

The writ of certiorari is granted in all cases where an inferior tribunal, board or officer, is alleged to have exceeded its proper- jurisdiction, or is otherwise acting illegally, when, in the judgment of the court applied to for the writ, there .is no other.plain, speedy, and adequate remedy.

It is claimed by the defendant that the District Court, after the reversal of the cause in this court still had jurisdiction and authority to r'ender the judgment it did, from the fact that the procedendo issued and the cause was again docketed for trial, and that the plaintiff appeared thereafter and dismissed his suit. A procedendo issues upon the reversal or the remanding of every cause, and the inferior tribunal is thereby instructed to proceed in a manner not inconsistent with the opinion’ of this court. If, from the judgment of this court, it appears that the cause of action no longer exists, or, in other words, there is nothing left upon which the court can act, the cause should be dismissed. While it might be true that the appearance of a party to dismiss his cause of action would give the court jurisdiction over the person, it would not, however, follow, that such an act would give the court jurisdiction of the subject matter of the action. That there was nothing left after this cause was reversed of which the court could take jurisdiction, is clearly indicated by the opinion of this court in 10 Iowa, 9. Says Stockton, Justice: “It is to be observed that although the case is remanded to the District Court for further proceedings, yet the opinion rendered in this court disposed of all questions arising on the power of attorney under which the confession of judgment was made, and although by the order remanding the cause the parties were recognized as still nominally in the District Court, yet the plaintiff was there virtually without any cause of action. The decision of this court that the power of attorney conferred no authority on the clerk to enter up judgment against defendant, left nothing in fact, possible to be done in the District Court on the return of the cause to that court. The plaintiff could not amend his power of attorney or supply its defects so as to give the clerk power either in vacation or in term time, to render a judgment against the defendant.”

Without undertaking therefore, to determine whether the defendant could, after the plaintiff had dismissed his cause of action, come in at a succeeding term of the court, claim a default and judgment upon his answer, and without notice to the plaintiff at the time of such dismissal, that the defendant should insist upon judgment on his cross-claim, we conclude that the opinion as above quoted, settles the question that the court had no power to render the judgment that it did. It exceeded its jurisdiction in so doing, and the plaintiff was entitled to the verdict. The motion of defendant to quash the writ, is therefore overruled, and the judgment of the District Court is set aside and declared void.