Collins v. Powell
| Decision Date | 08 February 1938 |
| Docket Number | 44118. |
| Citation | 277 N.W. 477,224 Iowa 1015 |
| Parties | COLLINS et al. v. POWELL. |
| Court | Iowa Supreme Court |
Certiorari to Superior Court, Linn County; Thomas B. Powell, Judge.
Original proceedings in certiorari in the Supreme Court to review proceedings and orders of the superior court of the city of Cedar Rapids, Linn county, Iowa, in an action therein pending. The writ was issued and, under a special appearance a return was made, which included the writ and the proceedings of the respondent court in the action pending therein. The respondent filed a special appearance in this court, for the purpose of attacking the jurisdiction of the Supreme Court, and in connection therewith filed a motion to quash and dismiss the writ of certiorari and proceedings thereunder. The opinion states the facts.
Writ quashed and proceedings dismissed.
E. E Collins, of Cedar Rapids, for petitioners.
Barnes Chamberlain & Hanzlik, Donald P. Barnes, and Grimm, Elliott, Shuttleworth & Ingersoll, all of Cedar Rapids, for respondent.
On the 5th day of April, 1937, Van Vechten Shaffer, Don Barnes, Frank Byers, Arthur Barlow, George F. Miller, Shores-Mueller Company, and G. A. Shores, Van Vechten Shaffer, Don Barnes, Frank Byers, Arthur Barlow, trustees under a voting trust agreement with the stockholders of the Shores-Mueller Company, filed in the superior court of Cedar Rapids, Linn county, Iowa, a petition in equity, which named as defendants, E. E. Collins, C. E. Mueller, Herman L. Currier, Mrs. Wilhelmina Justine Steege, and Mrs. Anna Buhman, attorney in fact for Mrs. Wilhelmina Justine Steege. Said petition alleged, in substance, that at various times since prior to May, 1933, and until some time prior to the commencement of this action, the defendants had been instrumental in commencing fourteen different lawsuits in the district court of Linn county, Iowa, in which the plaintiffs in this action were made defendants; that in practically all of said lawsuits the defendant E. E. Collins acted as attorney for the defendants, and that the other named defendants were parties plaintiff or interveners in such actions or were instrumental in procuring the commencement thereof; that all of said actions were based on matters with which the defendants therein (the plaintiffs in this action) had no connection or were in no way liable, or had been fully adjudicated; that said actions were instigated by the defendants E. E. Collins, C. E. Mueller, and Herman L. Currier, with knowledge that no cause of action existed, and for the purpose of harassing the plaintiffs, and, by alleging that the defendants had been guilty of false representations and fraud and causing much publicity in connection with said charges, coercing the defendants into making settlement thereof for sums of money in which the said E. E. Collins, C. E. Mueller, and Herman L. Currier would share, or for the purpose of obtaining money from some of the plaintiffs in said actions for services performed in the prosecution thereof; that in each of said actions the defendants (plaintiffs herein) had promptly pushed said actions to issue and hearing or trial; that some of said lawsuits were determined adversely to plaintiffs therein by rulings of the court, and others, when reached for trial, were dismissed by the plaintiffs therein without prejudice.
Said petition further alleged that, since the disposition of all of said fourteen different lawsuits which had been commenced in Linn county, Iowa, the defendants had been instrumental in instituting four different lawsuits in the district court of Bremer county, Iowa, all of which were based upon the same matters involved in some or all of the fourteen different lawsuits which had been brought by said defendants in the district court of Linn county, Iowa; that said four lawsuits in Bremer county were based upon the same alleged false representations and fraud that had been alleged in the fourteen lawsuits, above referred to, brought and disposed of in Linn county; that the judgments asked against the defendants (plaintiffs in this action) ranged in amounts from $79,000 to $2,450,460; that said lawsuits in Bremer county were a continuation of the process of harassing the defendants therein (plaintiffs in this action); and the plaintiffs in this action asked that the defendants named be enjoined and restrained from prosecuting said actions in Bremer county and from commencing or prosecuting any more actions of a nature similar to said actions.
On the filing of said petition the court ordered that a temporary injunction issue as prayed, upon the filing of a bond, and, on April 6, 1937, a temporary writ of injunction was issued. This temporary writ of injunction and the original notice of the action were served personally on each of the defendants, the last such service being on the 17th day of April, 1937.
On May 6, 1937, the defendants filed a writing in said action denominated as a special appearance, which, omitting formal parts, was as follows:
" Comes now E. E. Collins, C. E. Mueller, Herman L. Currier, Mrs. Wilhelmina Justine Steege and Mrs. Anna Buhman, Attorney in Fact for Mrs. Wilhelmina Justine Steege, Defendants named in the above and foregoing entitled cause of action and appear specially for the sole purpose of objecting to the jurisdiction of the Court, and for no other purpose."
Hearing was had on said special appearance on the 6th day of May, 1937, but there is nothing in the record to show on what ground the defendants' objection to the jurisdiction of the court was based, or that any specific ground in support of such objection was called to the attention of the court. The matter was taken under advisement, and, on the 7th day of May, 1937, the court entered the following order:
" And now to-wit: On this 7th day of May, 1937, it being one of the regular days of the May, 1937 Term of said court, the court having examined the pleadings on file, together with the return of the original notices, as filed, and being fully advised, finds: That the defendants E. E. Collins, C. E. Mueller and Herman L. Currier, are each of them residing in Cedar Rapids, Linn County, Iowa, and that they were each served with due and timely notice of the commencement of this action in Cedar Rapids, Linn County, Iowa, and that the defendants Mrs. Wilhelmina Justine Steege and Mrs. Anna Buhman, Attorney in Fact for Mrs. Wilhelmina Justine Steege were and are residents of Bremer County, Iowa, and were served with due and timely notice of said action in Bremer County, Iowa, and that the court had jurisdiction of the parties to said action, and, therefore, the special appearance of the defendants is overruled."
On May 10, 1937, the case came on for hearing and the following entry was made by the trial judge:
Thereafter, on May 11, 1937, the court entered its decree finding the defendants, and each of them, in default for want of appearance, and that the equities were with the plaintiffs; and ordered that the temporary injunction be made permanent, that the defendants, and each of them, be permanently enjoined from further prosecuting the said suits in Bremer county, Iowa, and from commencing or prosecuting any additional actions of a nature similar to the foregoing actions in said court or any other court. On the 25th day of June, 1937, the defendants in said action filed their petition in this court asking for a writ of certiorari to the superior court of Cedar Rapids, Linn county, Iowa, and on the same day it was ordered by this court that such writ issue. The records of this court show that such a writ, signed by the clerk and under seal of this court was issued on June 1937, but our attention has not been directed to any record showing the service of such writ on the respondent.
At the outset we are confronted with a motion of the respondent to quash and dismiss the writ issued and all proceedings in this action (1) because no service of the writ was made upon the respondent, as provided by law; (2) because petitioners have a plain, speedy, and adequate remedy by appeal; (3) because petitioners have failed to comply with the requirements of rule 30 of this court; (4) because petitioners failed to attack the proceedings in the trial court in proper manner or form, by the mere statement that they appeared specially for the sole purpose of objecting to the jurisdiction of the court, and for no other purpose, because such statement raised no objection to the jurisdiction of the trial court and the overruling thereof presents no question for review by the Supreme Court.
The above motion was presented under a special appearance filed by the respondent, which specifically stated that it was made for the sole purpose of questioning the jurisdiction of this court, and was accompanied by a brief and argument in support thereof; but, although such motion and the brief and argument in support thereof were filed in this court a sufficient time before the submission of the cause to enable the petitioners to file a resistance and counter brief and argument, nothing whatever has been filed by the...
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