11 18 118 523 Fagg v. Parker, Justice, &c. given by the court very manifestly lay down the law as above indicated. Upon the whole, however, we are inclined to think that this instruction had much weight in determining the verdict; that the jury were probably misled and confused by the language used, notwithstanding what had before been said; and that a new trial should therefore have been granted. 2 Iowa 30, and 463; Sullivan et al. v. Finn, 4 G. Greene 544. Judgment reversed. FAGG V. PARKER, Justice, &c. 1. CERTIORARI: It is no part of the office of a writ of certiorari to correct errors in the judgments of judicial tribunals, in cases in which the party asking the writ has lost a plain, speedy and adequate remedy by his own fault, or laches. 2. SAME. The writ does not lie to correct an erroneous judgment against a party when he has neglected to perfect an appeal within the time prescribed by law. Appeal from Hardin District Court. SATURDAY, OCTOBER 6. PLAINTIFF was summoned before the defendant Parker, (a justice of the peace) as garnishce at the suit of Eastman against Rutenbur. Judgment was rendered against him February 6th, 1860. On the 7th of May, 1860, this garnishee filed, in the District Court, his petition for a writ of certiorari against said justice of the peace to certify up said proceedings, upon the ground that he had no other plain, speedy and adequate remedy afforded by law to correct the errors and injustice of which he complains. Tho writ was refused and plaintiff appeals. Henderson and Huff & Thompson for the appellant, relied upon sections 1873 and 1965, Code of 1851. Fagg v. Parker, Justice, &c. E. W. Eastman for the appellant. The justice acted within his jurisdiction and his judgment could be questioned only on appeal. Voorhies v. The Bank of the United States, 10 Pet. 478; Thompson v. Tolmie, 2 Ib. 169; there was no usurpation by a denial of the right of appeal. The plaintiff did not bring an appeal within twenty days, and cannot now make his own negligence the basis for a writ of certiorari. WRIGHT, J.-The substance of petitioner's complaint is, that after making his answers as garnishee, he left the justice's, regarding it impossible that he would render judgment against him upon the showing made; that he was taken entirely by surprise when he learned that judgment had been rendered; that he did not learn this until it was too late to appeal or prosecute a writ of error; and that the matters stated in his answer did not warrant or justify such judg ment. It is no part of the office of the writ of certiorari to correct every alleged crror of judgment in judicial tribunals, which parties claim take them by surprise. Nor again docs this writ issue to correct an error, where the party has lost the plain, speedy, and adequate remedy pointed out by law, by his own fault or negligence. When the statute says that this writ may issue for certain purposes, when in the judgment of the court applied to, there is no other plain, speedy and adequate remedy, it was not intended to aid a party who had such a remedy, but has lost it by his own laches, by his own failure to attend to his proper duty. The language used in Houston v. Wolcott, & Co. 7 Iowa 173, (which was injunction by a garnishee to restrain the collection of a judgment rendered against him) is applicable here. It is there said that, "The law will not protect a careless, negligent garnishee any more than it will justify carelessness in any other party or suitor. He ought to show that his failure to make defense, was not attributable to his own omission, neglect or default." Robert E. Pecker & Co. v. Cannon and Scott's Administrators. There was no error in refusing the writ. Judgment affirmed. ROBERT E. PECKER & Co. v. CANNON AND SCOTT'S AD MINISTRATORS. 1. JOINDER OF PARTIES: ADMINISTRATORS. Where one of the makers of a joint and several promissory note dies pending an action thereon, his administrators can not be substituted and joined with the surviving maker as a party defendant; citing and following Childs, Sanford & Co. v. John Hyde & Co. 10 Iowa 294; Wapello County v. Bigham Adm'r, Ib. 39. Appeal from Polk District Court. SATURDAY, OCTOBER 6. PLAINTIFF sues upon a joint and several promissory note made by Cannon and Scott. Pending the action, Scott departed this life. His administrators were notified of the pendency of the action, and such proceedings were had as that, against their objection, judgment was rendered against Cannon, and Goodrell and Scott "Administrators of the Estate of W. A. Scott deceased." It was also ordered that an execution issue against Cannon, and that a transcript of this judgment be filed at the office of the County Judge as an adjusted claim against the estate of W. A. Scott deceased. From this proceeding the administrators appeal. M. D. & W. H. McHenry for the appellants, relied upon Childs, Sanford & Co. v. John Hyde & Co. 10 Iowa 294. Wilson T. Smith for the appellee. WRIGHT J.-It was erroneous to substitute the administrators and continue the action as to them. The action then pending remained against Cannon but it was improper Hygum v. Ætna Insurance Company. to unite with him defendants liable in a different capacity and against whom a different judgment, if any, would have to be rendered. The fact that the note was joint and several does not take the case out of the rule recognized in the case of Childs, Sanford & Co. v. John Hyde & Co., 10 Iowa 294. And see Wapello County v. Bigham, Administrator Ib. 39; Fink & Co. v. Taylor's Administratrix, 4 G. Greene 196. Judgment reversed. HYGUM V. ETNA INSURANCE COMPANY. 1. INSURANCE COMPANY: BY-LAWS. When the directors of an insurance company, immediately after its organization, adopted the following bylaw: "Persons insuring with this company may insure with other companies, with the consent of the directors indorsed on the policy," which by-law was adopted by the board of directors acting under general power to control the business of the company; was printed upon the backs of all policies issued, including the one in controversy, it was held, 1. That the by-law was valid and binding upon the holder of the policy. 2. That a non-compliance with the requirements of the by-laws rendered the policy void. Appeal from Dubuque City Court. SATURDAY, OCTOBER 6. THE facts necessary to an understanding of the case are stated in the opinion of the Court. O'Niel & Harvey for the appellant, contended: 1. That the 6th section of the by-laws of the Dubuque Mutual Insurance Company did not render the policy issued to a party already assured without a compliance with the requisition therein provided, absolutely void: 2. That the by-law itself was void, because it was enacted by a board of directors who had no power to enact by-laws for the company, citing Ang. Hygum v. Ætna Insurance Company. & Ames Cor. sec. 327, 328; Parsons Mer. L. 496: 3. That the fact of the printing of the restriction on the back of the policy as a condition of insurance is not sufficient to show that it was a by-law, reviewing Roberts v. Chanago Mutual Insurance Company, 3 Hill 501: 4. That such a juxtaposition of the policy and the restriction constituted only prima facie evidence that the latter formed a part of the contract. Counsel also reviewed The Howard Insurance Company v. Scribner, 5 Hill 298; contending that it was unsupported by the English and American Courts and text writers, and was inapplicable to this case. Samuels, Allison & Crane for the appellee. I. If for any cause whatever the policy issued by the Dubuque Mutual Fire Insurance Company was, or became, void at the time of issuing the policy sued upon, the Ætna Insurance Company is liable for the whole loss, notwithstanding the provision in their policy that in case of any other insurance whether prior or subsequent, they will not be liable beyond the proportion which the amount insured by them bears to the whole amount insured. Forbrush v. Western Massachusetts Insurance Company, 4 Gray 337. II. The policy issued by the Dubuque Mutual Fire Insurance Company was void by reason of the violation of the 6th section of the by-laws of the Company. This by-law formed a part and parcel of the contract of insurance between the plaintiff and the mutual company. Ang. Fire In. sections 10 and 146 and notes 3 and 4; Liscom v. Boston Mutual Insurance Company, 9 Met. 205; Stark County Mutual Insurance Co. v. Hurd, 19 Ohio R, 176; Par. Mer. L. 496; Smith v. The Saratoga Mutual Insurance Company, Hill 508. III. The by-law was an express warranty that the assured would not insure in any company without the consent of the directors of the Dubuque Mutual Fire Insurance Company indorsed upon the back of his policy. Upon the truth or |