Davidson v. Wheeler

Per Curiam,

Mason, Chief Justice.

We shall first notice the point made by the plaintiff in error, that the District Court of Musca-tine county had no jurisdiction of the cause. The action was commenced in Dubuque, and by consent of parties the venue was changed to Muscatine. It is contended that the only mode of legally changing the venue in any case, is to pursue the mode pointed out by the statute and that “consent cannot give jurisdiction.”

This last is a correct maxim of law, but its application has been mistaken in the present case. It applies to a case where the court has no jurisdiction over the subject matter, as if a justice of the peace were to try a man for murder. There the consent of the accused could never render the sentence legal. But in the present case the court had full jurisdiction, provided tbe parties were properly before it.

Suppose in a suit brought in the proper county, the defendant makes a voluntary appearance without being summoned according to law. As well might it be said that consent could not give jurisdiction in that case as in this. This maxim of law that consent takes away all error is directly applicable to both cases for the only question in either is whether the parties are regularly in court; not whether the court has jurisdiction of the case.

But a graver matter remains to be considered. It is alleged that the proceedings on the trial were not in accordence with the requisitions of the statute.

It was ar. action of replevin brought prior, but tried subsequent to the passage of our present replevin law. The proceedings on the trial should therefore have been in accordance with the new law, for it is a well settled rule that where the practice is changed during the pendency of a suit, all subsequent proceedings must, as far as practicable, conform to the new law.

The plaintiff failed to prosecute his suit and thereupon a jury was empannelled and sworn “ to enquire and assess the value of the goods and chatties so as aforesaid replevied, and to assess the damages sustained by the defendant in the premises. ” Now the laws of the first session of the Iowa legislature, page 400, provide that in a case of this kind a jury shall be empannelled “ to enquire into the right of property and right of possession of the defendant to the goods and chatties in controversy. ”

. But not only was the oath incorrectly administered, but the finding of the jury was equally erroneous. Instead of bringing in a verdict in accordance with the statute, they found the property to belong to Hungerford & Livingston, strangers to the record. They also awarded damages to the defendant to the amount of more than five hundred dollars, whereas the statute only authorized the jury to find damages for the defendant, when they find either that the property was his, or that he was entitled to the possession thereof.

These are great and substantial departures-from the mode prescribed by the statute and render the proceedings materially erroneous.

The judgment below will therefore be set aside and a new trial ordered.