Central Iowa R'y Co. v. Piersol

Reed, J.

The judgment sought to be enjoined was rendered in an ordinary action on a money demand. The action was regularly commenced by the service of notice on the defendant. The case was set for trial at 9 o’clock a. m., on the eighteenth of June, 1881. The plaintiff in the action and his attorney appeared at the office of the justice before whom it was pending, at 9 o’clock, or soon thereafter. The cause was called at some time between 9 and 10 o’clock, and the justice stated to the plaintiff’s attorney that, as there was no appearance for defendant, he would enter judgment for plaintiff by default. The action was on an account, an itemized statement of which, duly verified, was filed with the justice, so that, in case the defendant made default, it would be unnecessary for the plaintiff to introduce any evidence to establish his claim. The justice opened his docket for the purpose of making the necessary entry therein, but, as he was desirous of going to a neighboring town that morning by the train, and as he heard the train coming before he completed the entry, he closed the docket, stating to the attorney that he would do whatever else was necessary to be done in the case after he returned in the afternoon.

There is some conflict in the evidence on the question as to whether the default was entered of record before the justice left his office; but we think a preponderance of the evidence shows that it was not entered at that time. The justice left his office at 9 o’clock and 50 minutes, and, between that time and 10 o’clock an attorney for the defendant in the action appeared at the office for the .purpose of appearing in the action for the defendant, and making defense therein. He examined the justice’s docket, and, finding that no judgment had been entered against his client, and not finding the justice at his office, he left the office after 10 o’clock, and gave the case no further attention on that day. • The justice returned to his office at 8 o’clock in the afternoon, and then completed the judgment entry in his docket. The attorney for the defendant did not learn that the judgment had been entered until the twenty-seventh of June. lie then wrote to the justice, complaining of his action, and insisting that the judgment was void, and threatening to institute a. personal action against him for damages unless the judgment was canceled. After some further correspondence between the parties, the justice, on the eighth of July, entered on the record of the judgment an order to the effect that it was canceled by request of the defendant, on the claim that the judgment was void, because rendered by default before the expiration of the time within which defendant had the right to appear and defend.

The ground upon which plaintiff seeks to enjoin said judgment is that, as it was entitled to appear in the case and make its defense at any time before 10 o’clock on the appearance day, and as it did appear at the office of the justice within that time for the purpose of making its defense, and was only prevented from doing so by the absence of the justice, he ceased to have jurisdiction of it, and the judgment which he subsequently entered is void for that reason. We think, however, that the position is not tenable. The action, as we have seen, was regularly commenced. The justice had jurisdiction of the case and of the parties. If he had entered the judgment in his docket before 10 o’clock, his action would have been erroneous, but the judgment would not have been void. Cory v. King, 49 Iowa, 365. In doing so, he would have been acting within his jurisdiction, but erroneously, and, under the well-settled rule in this state, the error could be corrected only in a direct proceeding, such as appeal or writ of error. Cooper v. Sunderland, 3 Iowa, 114; Morrow v. Weed, 4 Id., 77; Dishon v. Smith, 10 Id., 212; Ryan v. Varga, 37 Id., 78. It is probably true that no rights of the parties were determined by the oral statement of the justice, before he left his office, that he would enter judgment for plaintiff by default. Defendant had the right, notwithstanding that statement, to make its defense, and plaintiff gained no advantage from it. But what was done at that time had the effect to postpone the trial of the cause until 3 o’clock. The justice had the power to adjourn the cause, but probably not on the ground on which he did adjourn it. Code, § 3527. His action in adjourning it was irregular and erroneous, but was not void. He did not lose jurisdiction of either the parties or the cause by adjourning it. But the cause was still pending, and he had jurisdiction of the parties when he entered the judgment. The most that can be said, then, is that the judgment was erroneous. But plaintiff has no remedy by injunction on that ground. The judgment of the circuit court is, therefore,

Affirmed.