Burak v. Ditson

• Decision Date: 18 February 1930
• Docket Number: 40222
• Parties: OLGA BURAK, Appellee, v. LYMAN DITSON et al., Appellants
• Court: Iowa Supreme Court

229 N.W. 227

209 Iowa 926

OLGA BURAK, Appellee, v. LYMAN DITSON et al., Appellants

No. 40222

Supreme Court of Iowa, Des Moines

February 18, 1930

Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge.

Action on open account, aided by attachment. The publication of original notice was made in a newspaper known as the Daily Reporter, published in Sioux City, Woodbury County, Iowa. The defendants entered a special appearance, attacking the jurisdiction of the court on the specific ground that the Daily Reporter is not a newspaper of general circulation within the purview of Section 11084, Code, 1927. The trial court overruled the special appearance and motion to quash service. Defendants elected to stand on the special appearance. The court entered judgment in favor of the plaintiff for the amount claimed. Defendants appeal.

Affirmed.

Henderson Fribourg & Hatfield, for appellants.

H. N Slotsky and Shull & Stilwill, for appellee.

DE GRAFF, J. MORLING, C. J., and STEVENS, ALBERT, and WAGNER, JJ., concur.

OPINION

DE GRAFF, J.

The original notice in the instant action was published in time for the May, 1928, term of the district court of Iowa in and for Woodbury County. The notice was in proper form, and the statutory affidavit of publication was filed. The only question presented for determination is whether or not the "Daily Reporter" is a newspaper of general circulation, as the term is used in Section 11084, which in part reads:

"The publication must be of the original notice required for the commencement of actions * * * in some newspaper of general circulation published in the county where the petition is or will be filed, selected by the plaintiff or his attorney."

The facts were stipulated, and by said stipulation it is shown that the Daily Reporter is printed and circulated every day, with the exception of Sundays and holidays, in Sioux City, Iowa; that the paper was established in 1896; that it has a subscription list of approximately 500 subscribers, and its average daily circulation during the last five years was between 400 and 500; that the following classes and professions are represented in the said subscription list: Attorneys, automobile dealers, repair shops, banks, building and loan associations, material houses, dry cleaning establishments, clothiers, coal dealers, finance companies, furniture dealers, furnace companies, electrical concerns, grocers (both wholesale and retail), hardware concerns, insurance agencies, jewelers, chattel mortgage companies, real estate loan companies, plumbing concerns, oil companies, public utility corporations, collection agencies, mercantile agencies, tire companies, doctors, abstracters, shoe stores, department stores, produce companies, wall paper companies, undertaking establishments, newspapers, florists, storage houses, drug stores, and individuals. It was further stipulated that during the past two years the Daily Reporter had made a specialty of the news of the courts and of legal matters, and that it does publish and has heretofore published a number of legal notices in Woodbury County, Iowa, and that said newspaper is often designated by attorneys and various city, county, and state officers as a paper in which legal notices should be published. It is conceded that the printed matter in said newspaper primarily concerns itself with information regarding court proceedings and courts, but it also contains some advertising matter of miscellaneous character, some literature of a general nature, a limited amount of news and current events, summaries of business conditions, and articles on business problems. The newspaper is a four-page sheet, measuring 10 1/2" x 14", with four columns on each page. It is entered as second-class matter in the post office at Sioux City, and has fixed subscription rates.

Section 11084, Code, 1927, at the time of its enactment, and before amendment by the general assembly, apparently in response to dicta found in Brice v. Graves, 142 Iowa 722, 121 N.W. 504, did not contain the words "general circulation." This historical fact, however, is not controlling in the case at bar. The instant case being one of novel impression in this court, it is proper that we resort to the decisions of the courts of our sister states which have construed statutory language identical, or of similar import, with the section of our Code now under consideration. The Supreme Court of California, in a case entitled In re "Labor Journal," 190 Cal. 500 (213 P. 498), had under consideration a weekly newspaper published at San Bernardino, known as the "Labor Journal." The contention was that said newspaper was not a newspaper of general circulation, as defined by Section 4460 of the Political Code of California, but was a paper devoted to the interest, entertainment, and instruction of a particular class and profession. It is said in the opinion:

"But the fact that a newspaper is devoted to the interest of a particular class of persons, as, for instance, those engaged in the same business or calling, and specializes on news and intelligence primarily of interest to that class, will not exclude it from classification as a newspaper of general circulation, if, in addition to such special news, it also publishes news of general character * * *."

Whether a newspaper is one of general circulation is a matter of substance, and not of size.

In re Application of Green, 21 Cal.App. 138 (131 P. 91) reaffirms the proposition. See Baldwin v. Brown, 193...