Brice v. Graves

• Citation: 142 Iowa 722,121 N.W. 504
• Parties: BRICE v. GRAVES ET AL.
• Decision Date: 03 June 1909
• Court: United States State Supreme Court of Iowa

142 Iowa 722

121 N.W. 504

BRICE

v.GRAVES ET AL.

Supreme Court of Iowa.

June 3, 1909.

Appeal from District Court, Polk County; Hugh Brennan, Judge.

This is an appeal from an order of the district court denying a motion of defendant to set aside a decree against him. Affirmed.McHenry & Graham, for appellant.

Dunshee & Haines, for appellee.

EVANS, C. J.

On September 17, 1906, the plaintiff obtained a decree against the defendant et al. quieting title to real estate in Polk county. The defendant Bert Graves, appellant herein, was a nonresident and was served by publication of the original notice in due form in the Des Moines Daily Record. On November 7, 1908, he filed a motion to set aside the decree rendered against him on the ground that no legal notice had been served upon him. The specific ground of attack upon the sufficiency of the notice is that the Des Moines Daily Record is not a “newspaper” within the meaning of section 3535 of the Code. In resistance to such motion, a showing of facts was made by the plaintiff in the form of affidavits tending to show that the Des Moines Daily Record was a “newspaper” within the meaning of the statute. To the showing of facts thus made, the defendant demurred, and his demurrer was overruled. From the order overruling such demurrer, and from the further order denying his motion, the defendant has appealed.

No question is raised by either party as to the method of pleading or of procedure, but both parties confine their discussion to the substance of the contention, as already indicated. The facts set forth in the following affidavit must be deemed admitted by the demurrer: “I, Alice E. Kennedy, on oath depose and say: That I am editor of the Des Moines Daily Record; that the said Des Moines Daily Record has been published regularly in the city of Des Moines for the past four years; that it has an actual bona fide paid subscription of more than 200 copies daily; that its subscribers are not made up of any one class or profession; that it has a large paid subscription list among bankers, abstracters, lawyers, wholesale merchants, retail merchants, brokers, real estate agents, rental agents, architects, bonding companies, public and private contractors, railroads and the public service corporations in addition to its large general subscription list; that the paper is generally and regularly read and examined by a very large portion of the best business men in Polk county; that it contains a large and varied advertising list covering many lines of business; that it publishes the latest news in regard to ordinances, resolutions of the city council, building, and improvement, and also reports and cites items of local and foreign news, as well as other miscellaneous items of interest; that it publishes from day to day the latest news in regard to transfers of both real and personal property, either by deed, mortgage, or bill of sale; that it is the only paper in the city of Des Moines giving complete news in regard to building permits and new building enterprises; that it publishes always all news relating...