City of Cedar Rapids v. Rall

Weaver, J. I. The return of the writ is uncontroverted, and discloses the following state of facts: On the. [336] twenty-seventh, of July, 1900, the Ilawkeye Loan & Brokerage Company began an action in the court of said justice of the peace to recover upon a money demand against the city of Cedar Rapids. Original notice of such action, returnable August 4, 1899, was duly served' upon the city. At the appointed time both parties appeared by counsel, and by agreement a continuance was had to August 18, 1S99, on which date both parties again appeared; and by mutual consent a further continuance was had to a date thereafter to be fixed, and a memorandum of such agreement and order was entered upon the justice’s docket. Nothing more was done until May 8, 1900, when, on request, of the Ilawkeye Loan & Brokerage Company, the justice set the trial for May 15th, at 10 o’clock a. m., and caused five days’ notice thereof to be served upon the city. At the time fixed, the city having failed to appear, default was entered, and cause continued to May 18th, for proof of the claim on which the suit was brought. On May 18th proof of the claim was presented, and on May 21st judgment was entered against the city for $24.29. It further appears by amended abstract, not denied, that the contiuance above mentioned, from May 15th to May 18th, was ordered by the justice Tupon his own motion, on account of other official business .•requiring his attention. The argument of appellant is principally to the point that, even though the continuance to a ■date to be thereafter named was by the express consent of 'both parties, the justice thereby lost jurisdiction to further proceed, and had no authority to render judgment. It being conceded that there was mutual consent to the order of continuance, and that the justice of the peace, after naming the date, gave fair and ample notice thereof to the parties, .appellant should not be permitted to repudiate its voluntary .•agreement, or escape the adjudication thus invited, unless .by statute or controlling precedent it clearly appears the ipoint urged by counsel is well taken. The statute (Code, ssection 4496) authorizes a justice of the peace, upon his [337] own motion, to order the continuance of a case pending in his court, for a period not exceeding three days. It has been decided that an adjournment by the justice for more then three days without the consent of defendant has the effect to deprive such court of jurisdiction, and judgment rendered thereafter is void (Iowa,, Union Tel. Co. v. Boylan, 86 Iowa, 90), and that, where continuance was had to an indefinite time, one party cannot lawfully obtain judgment by default against the other until the party against whom the default is taken has been notified of thetimeandplaeeatwhich •such cause is again set for trial. Rowley v. Baugh, 33 Iowa, 201. But, so far as we have been able to discover, neither this nor any other court has ever held that where jurisdiction has been admittedly obtained in the usual method, and the parties' have appeared upon the return day, and, to suit their own convenience, have mutually agreed to let the trial stand •over to a day thereafter to be fixed, and such date has thereafter been named by the justice, and due notice given the parties, the court thereby loses its jurisdiction to proceed with the case. The statute does not so provide, either in express words or by necessary implication; and, in the interest of fair practice, such interpretation should not be forced upon it. A justice’s court is not, and, in the very nature of things, cannot be, held to the same strict formality which may be insisted upon in courts of record. The obtaining of jurisdiction originally by notice or by voluntary appearance must, of course, always appear; but, jurisdiction once so obtained, the presumption of regularity is in its favor. Informal in its procedure, and being' always open, it is a ■common and proper practice to adjourn cases from time to time by consent without formal motion, in order to accommodate the business or convenience of the parties. If, then, it so happens that the parties are not ready just at the time to name a date which will suit their mutual convenience, and they agree to an order adjourning to a time [338] thereafter to be fixed, we see no good'reason why that agreement 'and order are not valid and binding upon all concerned. It is, of course, implied in such order that no further proceedings shall be had without due notice; but, notice being given, we are disposed to hold that the parties, are still in court, and bound by the judgment entered. II. The appellee raises the question whether, conceding the justice had no jurisdiction, the appellant’s remedy was not by writ of error, and that therefore certiorari will not lie. In view of the fact that we find against the appellant upon the-merits of tire case, we think it unnecessary at this time to decide the question of practice. The judgment below is aeeirmed.