City of Oelwein v. Dvorsky, 84-1255

Decision Date26 November 1985
Docket NumberNo. 84-1255,84-1255
Citation380 N.W.2d 739
PartiesCITY OF OELWEIN, Iowa, Plaintiff-Appellee, v. Leo DVORSKY, Defendant-Appellant.
CourtIowa Court of Appeals

Robert J. Hearity, of the Hearity Law Firm, Oelwein, for defendant-appellant.

Ronald L. Van Veldhuizen, Acting City Atty., Oelwein, for plaintiff-appellee.

Considered by DONIELSON, P.J., SCHLEGEL, and HAYDEN, JJ.

SCHLEGEL, Judge.

The defendant, Leo Dvorsky, appeals the court's order overruling his special appearance, contesting the court's jurisdiction to grant a temporary injunction and later a permanent injunction (with other relief).

In November, 1981, Dvorsky sought a variance from the Planning and Zoning Commission and Board of Adjustment of Oelwein, for the purpose of building a garage upon his residence property. The construction proposed was not in compliance with the building and zoning codes. The variance was denied by the commission and board. Thereafter, Dvorsky proceeded with construction of the garage.

On December 6, 1982, Oelwein filed a petition in equity, alleging the improper and illegal construction of the garage, and praying that Dvorsky be enjoined and restrained from constructing the garage in violation of the building and zoning codes and from leaving the incomplete structure standing in violation of those codes. Further, Oelwein sought authority to remove the structure and assess the costs of removal against Dvorsky.

On the same day, Oelwein obtained an order of court that Dvorsky show cause before the court at 1:30 p.m. on January 3, 1983, why an injunction should not be issued, and for such further relief as may be just and equitable. That order provided: "That notice of the time and place of such hearing herein set and fixed be given the Respondent in the manner provided for the service of Original Notices in the Iowa Rules of Civil Procedure." That order also restrained Dvorsky from committing or permitting "any of said acts" until the further order of court.

On December 7, 1982, a document entitled "Notice" was served upon Dvorsky. That notice was as follows:

YOU ARE HEREBY NOTIFIED, that there is now on file in the office of the Clerk of the District Court of the State of Iowa in and for Fayette County, in the Courthouse at West Union, Iowa, the Petition and Affidavit of the Petitioner in this action alleging that you are constructing a garage on your residence real estate, described in such Petition, in violation of the provisions of the petitioning city's Building and Zoning Codes in the particulars set forth in such Petition, and praying that you be forever enjoined and restrained from continuing the construction of said garage in violation of the provisions of the petitioning City's Building and Zoning Codes in the particulars set forth therein, from leaving the partially completed garage structure standing in violation of such Building and Zoning Codes, and that unless you remove the said partially completed garage structure from said premises within such time as the Court deems reasonable that the Petitioner be authorized to raze and remove the same from said premises, that the costs of such removal be assessed as costs in rem against the real estate of the Respondent, and for such further and other relief as may be deemed equitable in the premises and for costs of this action, and that in the meantime that you as Respondent be restrained and forbidden to commit or permit any acts of further construction of such garage building until the further Order of said Court.

That time and place of hearing on such Petition has been heretofore set and fixed by the Court for 1:30 o'clock p.m. on the 3rd day of January, 1983, in the Court Room of the Courthouse in West Union, Fayette County, Iowa, and that unless you appear and show cause why an injunction should not be issued as prayed in such Petition on or before the time and place thus set and fixed for such hearing, your default will be entered and Decree rendered for the relief prayed in such Petition, and a temporary injunction will issue as prayed to be in full force and effect until final hearing in this action.

That the Court in such Order has restrained and forbidden you to commit or permit any acts of further construction of such garage building until the further Order of said Court in the matter.

YOU WILL THEREFORE TAKE DUE NOTICE of such restraining order to avoid the penalties of law.

For further particulars see the Petitioner's Petition now on file herein.

Dated at West Union, Iowa, this 6th day of Dec. 1982.

The notice was signed by the Clerk of Court for Fayette County, and bore the address of the clerk at the county courthouse in West Union, Iowa. At the bottom of the page there appeared, printed upon the stationery, the following:

Darold J. Jack

Attorney

Oelwein, Iowa

There was no petition attached to the notice, and the record does not show that a copy of the court's order setting the matter for hearing, or the order restraining further construction was served upon Dvorsky. The sheriff's return is attached to the original of the above notice, and the sheriff's log, included in the record of proceedings, shows the service of only the notice.

At the hearing set for January 3, 1983, Oelwein appeared by its attorney, but Dvorsky did not appear. Default was entered against Dvorsky, and a temporary injunction was ordered. Pursuant to that order, a writ of injunction was served on Dvorsky on January 4, 1983. On October 10, 1983, the court entered an order making the temporary injunction permanent. The order also required Dvorsky to remove the garage within forty-five days and authorized the city to remove it after that time and assess the costs of removal "in rem against the real estate of the Respondent described in said petition."

On December 14, 1983, Dvorsky filed a motion for protective order, and obtained an ex parte order for the preservation of a video tape of a council meeting of the City of Oelwein where the garage demolition was discussed. On January 4, 1984, the protective order obtained by Dvorsky was set aside as of January 11, 1984, if no discovery was carried out by Dvorsky by that time. On January 9, 1984, an order was entered assessing costs of demolition and the costs of the case. On January 25, 1984, Dvorsky filed a special appearance, attacking the jurisdiction of the court to enter judgment against him, on grounds that he was never served an original notice. Specifically, he claimed that he had never been served a copy of the petition in this case.

The special appearance was submitted and was overruled. We affirm.

I. Original Notice. Dvorsky claims that all orders entered in this matter, regarding the injunctions and concerning the costs incurred by Oelwein, are void, because they were entered without personal jurisdiction. His claim of lack of jurisdiction is based upon his allegation that the notice served upon him was defective as an original notice.

An original notice shall contain:

...[T]he name of the court and the names of the parties, be directed to the defendant, state the name and address of the plaintiff's attorney, if any, otherwise plaintiff's address, and the time within which these rules require the defendant to serve, and...

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2 cases
  • Curtis v. Nid Pty, Ltd.
    • United States
    • U.S. District Court — Southern District of Iowa
    • March 6, 2003
    ...question in considering flaws or technical defects in form is whether the defendant has been misled." Id. Applying this standard in City of Oelwein v. Dvorsky, the Iowa Court of Appeals found defendant's allegation that the original notice was defective and failed to secure jurisdiction was......
  • Morris Plan Co. of Iowa v. Bruner, 89-107
    • United States
    • Iowa Court of Appeals
    • May 24, 1990
    ...hand, has no such effect on the original notice; a judgment based thereon is not void (but may be voidable). City of Olwein v. Dvorsky, 380 N.W.2d 739, 741 (Iowa App.1985); Holmes v. Polk City Savings Bank, 278 N.W.2d 32 (Iowa 1979). The distinction between mere irregularities and substanti......

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