Lester Wallis v. William Sparks.

LESTER WALLIS v. WILLIAM SPARKS.

Error to Muscatine.

Writ of error will only lie where there has been a final judgment in the Court below.

Where judgment has been arrested, if the plaintiff feels thereby aggrieved, and wishes to test the decision of the Court thereon, he may move for judgment against himself, which will be ordered, as a matter of course, upon which he may bring his writ of error (k).

In this case the verdict in the Court below was for the plaintiff, Wallis, who was also the plaintiff below. Judgment, however, was never rendered thereon, having been arrested by the defendant. The plaintiff then brought his writ of error in order to set aside the arrest.

WHICHER, for defendant, moved to dismiss the writ, because there was no final judgment in the Court below.

BY THE COURT, MASON, CHIEF JUSTICE.-The motion in this case must be sustained. Strictly speaking, perhaps the motion should have been to quash the writ of error, but the difference is not very material.

Writs of error will only lie where there has been a final judgment in the Court below. This in general only embraces those decisions and determinations of the Court which would be a bar to another action for the same cause.

The arrest of judgment is in no case such a bar. *21 *The parties must wait until there is a final judgment of some kind, when the whole proceedings

(k) The practice under the Rev. of 1860, now in force, is so entirely different from what it was when this decision was made that this case is of no value in practice in this state.

Bell v. Pierson.

below may be brought before the Appellate Court by a writ of error.

The plaintiff in this case might have moved for judgment against himself in the District Court which would have been ordered as a matter of course (Fish v. Featherwax, 2 Johnson's cases, 215, and Horne v. Barney, 19 Johnson's Report, 247), or he might have retraced his steps and accommodated his proceedings to suit the views of the Court until he had obtained final judgment. After which, in either case, if he had felt himself aggrieved, he might have brought the whole matter here for review.

BELL v. PIERSON, for the use of Achison.

Error to Des Moines.

By appearance and pleading, the defendant waives all defects in the process, as well as in the service thereof (1).

Where the plea was "illegality of contract," setting forth at the same time the facts constituting that alleged illegality, to which there is a general replication, the truth of those facts set forth, is the only question to be presented to the jury—not whether those facts rendered the contract illegal (m).

The Court cannot regulate its decisions on extrinsic matters. The record is the only guide.

The action was brought on two sealed notes, given by the plaintiff in error to the defendant. The first and sec

(1) Under the Revision, an appearance without pleading, either special or otherwise, to object to the substance or the service of process, is a waiver of any defects in the service, and the defendant is in court to all intents and purposes. Rev. § 2840, sub. 3; Hale v. Vansaun & Hunt, 18 Iowa, 19; Burns et al. v. Keas, et al. 20 Iowa, 16.

(m) This practice has been changed by statute. See Rev. § 2878; see, also, Beach v. Thompson, 15 Iowa, 383; Morgan v. Webster Co. ib. 595. The issue is not simply whether the facts pleaded are true, but, also, whether they constitute a good defense in law.

ond pleas were, "non est factum," and "fraud." For a third plea the defendant alleged that the said writings obligatory were made and executed by said defendant in furtherance of a contract between the said plaintiff and the said defendant for the sale of a parcel of lands belonging to the United States, with the express design that the same should be occupied and held by said defendant, contrary to the statute in such case made and provided. To this there was a general replication, and this constituted the main issue in the case.

Under these circumstances, it appears from the bill of exceptions that the court instructed the jury, that if *22 the plaintiff, Pierson, had improved *the premises

sold, they being public lands as alleged, such sale was legal, and the consideration in such case would be legal and good; to which the defendant excepted.

The first two points in the assignment of errors related to defects in the process and service. The third had reference to the charge of the Court as above stated.

BY THE COURT, MASON, CHIEF JUSTICE.-The first two points contained in the assignment of errors are readily answered. By appearance and pleading, the defendant waives all defects in the process, as well as in the service thereof. It is not, therefore, necessary for us to consider the sufficiency of such objections under different circum

stances.

The consideration of the third point has been attended with greater difficulty. This difficulty has arisen principally from the fact that the record does not present the case which either party has seemed to contemplate. On the one hand, the legality of the sales of public lands is attempted to be proved. This can have no relevancy to the case before us. The parties went to trial in the Court below, upon an entirely different issue. The defendant pleaded "illegality of contract," inasmuch as the notes

Bell Pierson.

were given in furtherance of a sale of public lands belonging to the United States, &c., upon which issue was joined. The only question presented to the jury by this state of pleadings was, whether the notes were given for the consideration stated, and not whether that consideration were legal or not. Had the plaintiffs below wished to present this latter issue, they should, in their replication, have demurred to the plea of the defendant.

But, on the other hand, the counsel for the plaintiff in error seems equally to have overlooked the actual state of the record. His argument seems to suppose that the actual question presented to the jury on the trial in the District Court was, whether the traffic in public lands was or was not illegal. We find nothing in the record to warrant such a conclusion. A distant inference of that kind may be drawn from the charge of the Court; but this inference is not sufficiently irresistible to authorize a conclusion by this Court.

What is there upon the record to show that the verdict of the jury was predicated upon this charge? What evidence do we find there, to prove that this charge was not a mere gratuitous dictum, a random observation, or speculative opinion, wholly irrelevant to the real question then about to be submitted to the jury? If this were the case it would *now be altogether improper to disturb *23 the judgment on account of that charge, even though it were ever so erroneous.

But, from various circumstances, we are led to believe that the real question intended by both parties to be presented to the Court and jury on the trial was, whether or not the sale of public lands was illegal. If this had been the case, the charge of the Court was pertinent to the question. We think also that it was correct.

But we cannot regulate our decisions here upon extrinsic evidence. The record is our only guide. According to that, it would seem that the only inquiry was, whether

Chapman et al. v. Allen.

the notes were given for the sale of public lands, as set forth in the plea, and denied by the replication. By rendering a verdict for the plaintiffs below, the legitimate inference is, that they found the notes were not given for the alleged consideration. The charge of the Court, therefore, was irrelevant to the question submitted to the jury, and could have had no influence upon the verdict. It would, consequently, furnish no ground for a reversal of the judgment below.

Had the Court below instructed the jury to render a verdict for the plaintiff, in case they found that the plaintiff, Pierson, had improved the premises, &c., or had it, when properly requested, refused to instruct the jury that the circumstance of the land having been improved was wholly irrelevant under the existing state of the pleadings, and that the only question for them to try was as to the truth of the defendant's plea, in either case it would have been error. Nothing of this kind, however, appears upon the record. We are, therefore, of the opinion that the judgment in this case should be affirmed.

Judgment affirmed, accordingly.

CHAPMAN et al. v. ALLEN.

The provisions of the statute, rendering it necessary to furnish the defendant with a copy of the summons, was intended for his own benefit, and may be waived by him.

The District Court have a discretionary power to modify or reverse any order during the term at which it was made.

This was an action of trover, brought against three *24 defendants and *regularly served on two of the number. The third defendant was not furnished with a copy of the summons as required by statute, he, at the time of service, having waived the furnishing of such copy.