Boyer v. Broadwater
| Decision Date | 10 June 1969 |
| Docket Number | No. 53579,53579 |
| Parties | Raymond BOYER and Jerome Boyer, by his Father and next friend, Raymond Boyer, Appellants, v. William J. BROADWATER, Appellee. |
| Court | Iowa Supreme Court |
Donohue, Wilkins & Donohue, West Union, for appellants.
Miller, Pearson & Gloe and Meyer & Hoeger, Decorah, for appellee.
On August 14, 1966, plaintiff Raymond Boyer and his minor son, Jerome, were injured while attending a horse show in Howard County, Iowa. They have brought this suit against defendant, a contestant in one of the events, alleging he negligently rode his horse into the spectator area, causing the injuries for which they now seek damages. We refer herein to Raymond Boyer as though he were the sole plaintiff.
Defendant is a resident of Minnesota. Plaintiff lives in Iowa. Jurisdiction of defendant depends upon service under the provisions of section 617.3, Code of Iowa, 1966. Defendant challenged the sufficiency of this service by appearing specially. His special appearance was sustained, and plaintiff has appealed from this ruling.
Section 617.3, Code of Iowa, 1966, provides in part as follows:
'* * * If such a person (a non-resident) commits a tort in whole or in part in Iowa against a resident of Iowa, such acts shall be deemed to be doing business in Iowa by such person for the purpose of service of process or original notice on such person under this Act, and shall be deemed to constitute the appointment of the secretary of state of the state of Iowa to be the true and lawful attorney of such person upon whom may be served all lawful process or original notice in actions or proceedings arising from or growing out of such contract or tort * * * The * * * committing of the tort shall be deemed to be the agreement of * * * such person that any process or original notice so served shall be of the same legal force and effect as if served personally upon such defendant within the state of Iowa. * * *
The section also directs the secretary of state to return to plaintiff or his attorney the duplicate copy referred to, along with his certificate showing which it was filed in his office.
There is no dispute that on July 31, 1968, plaintiff filed duplicate copies of an original notice in this cause with the secretary of state, who thereafter returned one copy to plaintiff's attorney with his certification that the original had been filed in his office on that date. It is also agreed that this certificate and copy of notice were filed in the office of the clerk of the court of Howard County in compliance with section 617.3.
To this point there is no argument, but defendant contends no notification of filing was mailed to defendant and that the proof of service filed did not satisfy the statute.
When the legislature sets up an extraordinary method of securing jurisdiction over non-residents of this state--as section 617.3 does--we have consistently held the non-resident is subject to such process only upon clear and complete compliance with the procedure established by the statute. Fagan v. Fletcher, 257 Iowa 449, 451 , 133 N.W.2d 116, 117, and citations; Andersen v. National Presto Industries, Inc., 257 Iowa 911, 919, 135 N.W.2d 639, 644; Esterdahl v. Wilson, 252 Iowa 1199, 1203, 110 N.W.2d 241, 243, and citations; Kraft v. Bahr, 256 Iowa 822, 826, 128 N.W.2d 261, 263.
We mention that a hearing on special appearance is not an equitable action, but is a special proceeding. This appeal therefore is not de novo. It comes to us on assigned errors. Tice v. Wilmington Chemical Corporation, 259 Iowa 27, 35, 141 N.W.2d 616, 621 (supplemental opinion at 143 N.W.2d 86.) However, there is no dispute of fact here and the matter must be determined by deciding if the trial court correctly applied section 617.3.
The plaintiff assigns two errors:
(1) That the court erred in holding no notification of filing was mailed to defendant;
(2) That the court erred in holding the proof of service was fatally defective.
These raise but a single issue and we discuss them together. The sole question is whether there was that clear and complete compliance with section 617.3 which is necessary to confer jurisdiction over this non-resident defendant. We conclude there was and we reverse the holding of the trial court.
The controlling facts are briefly these. Plaintiff filed duplicate copies of original notice with the secretary of state, who returned one copy to plaintiff's attorney with his certificate showing filing of the original in his office.
An exact copy of the original notice was mailed to defendant and a Second copy of the original notice was included, identical with the first except for the inclusion of this additional provision:
'You will take notice that an original notice of suit against you, a copy of which is hereto attached was duly...
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...(Iowa 1973). Specifically, defendants urge plaintiffs have failed to effect proper proof of service. See generally Boyer v. Broadwater, 168 N.W.2d 799, 801-802 (Iowa 1969). It is conceded, however, this issue was never presented to the court below. Therefore, it cannot be here raised for th......
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...is subject to such process only upon clear and complete compliance with the procedure established by such statutes. Boyer v. Broadwater, 168 N.W.2d 799, 800 (Iowa 1969); Esterdahl v. Wilson, 252 Iowa 1199, 1203, 110 N.W.2d 241, 243; Jermaine v. Graf, 225 Iowa 1063, 1066, 283 N.W. 428, 430; ......