Shea v. Quintin.
Jurisdiction: defective notice : justice of the peace. A judgment by default rendered by a justice of. the peace, upon a notice served only four days before the day upon which the judgment was rendered, is not void for want of jurisdiction. It is not a case of no notice, but merely of defective notice, and the error of the justice in holding it sufficient must be corrected in the manner provided for the correction of other errors.
Appeal from Wapello District Court.
Saturday, October 22.
This is an equitable proceeding. The petition recites that defendant, QuintÃn, recovered a judgment against plaintiff before a justice of the peace, and that a transcript thereof was filed in the office' of the clerk of the district court, upon which an execution was issued and levied upon the lands of said plaintiff. The sheriff holding the execution is joined as a defendant. It is charged that said judgment is void, because the notice issued in the proceeding was served on the defendant but four days before the day upon which the judgment was rendered. The petition admits the service of notice, and states that defendant did not appear because he had not been legally notified, and that judgment by default was rendered against him. The indebtedness upon the cause of action is denied. An injunction was allowed upon the petition, restraining the levy and sale of property upon the execution. Defendants demurred to the petition upon several grounds, which are substantially to the effect that the judgment cannot be attacked in this way. The demurrer was sustained and plaintiff appeals.
Hendershott & Burton for the appellant.
No appearance for appellees.
*51Beck, J.
The petition shows that notice of the action wherein the judgment was rendered was served upon the defendant therein, who is the plaintiff in this proceeding. It is then not a case of want of notice, but of defective and insufficient notice. The form of the notice, manner and tim.e of the service, are all prescribed by the statute. It cannot be said that want of compliance with these requirements is a case of want of notice, and that a judgment rendered thereon is without notice, and, consequently, without jurisdiction of the person of defendant. The petition avers that, in fact, the defendant was served with notice, but alleges that the service was defective and insufficient. .The justice adjudged the service to be sufficient. In this he erred, but his error should have been corrected as other errors, by appeal or otherwise, as provided by law, and not by another action, as is attempted in this proceeding. A notice, it is insisted, is necessary to give the justice jurisdiction of the person of defendant in an action, and without such jurisdiction he cannot render judgment, let this be admitted. But the defendant in the proceeding in 'question did have notice. The judgment is not, therefore, a violation of that principle of the law which secures to him notice of the suit instituted against him. Shawhan v. Loffer, 24 Iowa, 217; Ballinger v. Tarbell, 16 id. 491.
The judgment of the district court sustaining the demurrer is
Affirmed.