Cummings v. Landes

• Decision Date: 09 July 1908
• Citation: 117 N.W. 22,140 Iowa 80
• Parties: CUMMINGS ET AL. v. LANDES ET AL.
• Court: Iowa Supreme Court

140 Iowa 80

117 N.W. 22

CUMMINGS ET AL.

v.LANDES ET AL.^a1

Supreme Court of Iowa.

July 9, 1908.

Appeal from District Court, Van Buren County; C. W. Vermillion, Judge.

The petition alleged that in his lifetime Oliver H. P. Cummings owned 80 acres of land; that he died testate in 1883, devising a life estate therein to his widow and the remainder to his son, Freemont Cummings; that the widow accepted under the will and has since died; that Freemont Cummings died in 1899, leaving a widow, Alice E. Cummings, and four children, Annie E., Jessie L., Perry M., and Charles H. Cummings; that at the March, 1903, term of court, in an action entitled John H. Landes v. Alice Cummings et al., a decree was entered foreclosing an alleged mortgage of $600 covering said land executed by Freemont Cummings and wife securing a note for like amount, and both bearing date June 5, 1890, and due three years thereafter; that special execution was issued and the land sold at sheriff's sale to Landes for $1,698.05, and a year later a sheriff's deed executed to said Landes, who is claiming the right of possession; that each of plaintiffs claim a one-sixth interest in said land, and aver that the decree was void as to them because no notice of the action was served on them; that the alleged mortgage is fully satisfied in so far as any right to foreclose is concerned, and they prayed that the decree of foreclosure and all proceedings thereunder be set aside as to them, held for naught, and title to one-sixth each be quieted in them, and that the land be partitioned. A general equitable demurrer was sustained, and, as plaintiffs elected to stand on the ruling, the petition was dismissed. The plaintiffs appeal. Reversed.Robt. & H. B. Sloan, for appellants.

Walker & McBeth and E. L. McCold, for appellees.

LADD, C. J.

The allegations of the petition were such that the demurrer was erroneously sustained if it shall be found that no notice of a suit for the foreclosure of a mortgage on 80 acres of land begun in 1903 was served on the plaintiffs, for in that event it appeared therefrom that each of them owned a one-sixth interest therein. If it be found otherwise, the ruling on the demurrer was correct. As is alleged, a printed copy of the original notice was pasted on a piece of paper, and the return of service by the sheriff is that he served this on plaintiff, then under 14 years of age, “by reading the same to each of them, and delivering each a true copy thereof in the presence and hearing of their mother, Mrs. Alice M. Cummings, at her usual place of residence in Des Moines township, Van Buren county, Iowa.” The alleged notice required them to appear on the 5th day of January, 1903, and this notice was served, if at all, on February 19th of the same year, and decree was entered March 18, 1903. An acknowledgment of timely service was indorsed by Alice M. Cummings, but long after the time fixed in the notice. The points raised by appellants are that (1) the original notice was not signed by plaintiff or his attorney; (2) that the return shows that it was not served as required by statute; and (3) that the time fixed for appearance was long previous to that of service.

1. Our statute requires that the original notice be “signed by the plaintiff or his attorney.” This is to authenticate it as coming from the plaintiff in the action. A written signature is not in terms exacted. To sign, in the primary sense of that expression, means to make a mark, and the signature is the sign thus made. By long usage, however, influenced, no doubt, by the spread of learning, signature has come ordinarily to be understood to mean the name of a person attached to something by himself, and therefore to be nearly synonymous with “autograph.” This signification is derivative, however, and not inherent in the word itself. In re Walker's Estate, 110 Cal. 387, 42 Pac. 815, 30 L. R. A. 460, 52 Am. St. Rep. 104. Looking at the original meaning of the word, in connection with the usage since the people generally have become able to write their own names, we have no trouble in reaching the conclusion that, as employed in the statute, no more is exacted than that the name of plaintiff or that of his attorney be attached to the notice by any of the known methods of impressing the name on paper whether this be in writing, printing, or lithographing, provided it is done with the intention of signing or be adopted in issuing the original notice for service. Loughren v. Bonniwell, 125 Iowa, 518, 101 N. W. 287, 106 Am. St. Rep. 319;Herrick v. Morrill, 37 Minn. 250, 33 N. W. 849, 5 Am. St. Rep. 841;Mechen v. More, 54 Wis. 214, 11 N. W. 534;Hamilton v. State, 103 Ind. 96, 2 N. E. 299, 53 Am. Rep. 491, and note. Hoitt v. Skinner, 99 Iowa, 360, 68 N. W. 788, and Doerr v. Life Ass'n, 92 Iowa, 39, 60 N. W. 225, are not in point, as in neither was there any signature whatever. As the plaintiff in the foreclosure suit presented the notice signed by his attorney to the court procured a decree to be entered, based on its sufficiency, it will be assumed, in the absence of any showing to the contrary, that he had adopted the printed signature, and that the court so found.

2. The notice was addressed to Alice M. Cummings, Jessie L. Cummings, Perry M. Cummings, widow and heirs of Freemont Cummings, deceased, and required them to appear and defend “before noon of the second day of the January term, A. D. 1903, of said court, which will convene at Keosauqua, Iowa, on the 5th day of January, 1903.” The only proof of service was an acknowledgment thereof indorsed on the notice subsequent to said January term in words following: “I, Alice M. Cummings, hereby accept due, timely, and legal service of the oppositenotice waiving time and copy thereof. Alice M. Cummings.” Also a return of the sheriff that on the 19th day of February, 1903, he “served the same on Perry M. Cummings and on Charles H. Cummings, minors, by reading the same to each of them, and delivering to each a true copy thereof, in the presence and hearing of their mother, Mrs. Alice M. Cummings, at her usual place of residence” in the county. Even though service had been in accord with the requirement of the statute, it was served long after the time fixed for appearance, which for this reason was at an impossible date. The statute exacting the designation in the notice of the time and place for the appearance of the persons served always has been...