Collinson v. City of Dubuque

• Citation: 45 N.W.2d 148
• Decision Date: 13 December 1950
• Docket Number: No. 47748,47748
• Parties: COLLINSON v. CITY OF DUBUQUE.
• Court: Iowa Supreme Court

Page 148

45 N.W.2d 148

COLLINSON v. CITY OF DUBUQUE.

No. 47748.

Supreme Court of Iowa.

Dec. 13, 1950.

Rehearing Granted March 9, 1951.

O'Connor, Thomas & O'Connor, of Dubuque, for appellant.

John J. Kintzinger, Thomas H. Nelson, and Robert M. Czizek, all of Dubuque, for appellee.

MANTZ, Justice.

On October 17, 1949, the city council of Dubuque, Iowa, levied a special sewer construction assessment against property of George B. Collinson, over his objection. On October 28, 1949, as plaintiff, he filed his petition alleging the various steps taken by the city of Dubuque, Iowa, to construct a sewer, his objections thereto, the overruling of his objections and the levy of the special assessment. At the same time he filed with the clerk of the district court of Dubuque, Iowa, an instrument purporting to be a notice of appeal addressed to the city of Dubuque. The notice of appeal bore an endorsement in which the city clerk of Dubuque, Iowa, acknowledged and accepted service of said notice of appeal and receipt of copy.

On November 16, 1949, the city of Dubuque, as defendant, filed a special appearance attacking the jurisdiction of the district court to hear said appeal for the reason that plaintiff had failed to perfect his appeal by proper service of notice as provided by law. On January 17, 1950, such special appearance was argued and on January 26, 1950, the court entered an ex parte order permitting defendant to amend its special appearance. Defendant's amendment alleged that plaintiff's notice of appeal was received from one of the attorneys for plaintiff by the city clerk who endorsed upon the notice: 'Service of the above original notice and receipt of a true and correct copy thereof with petition attached are hereby acknowledged this 28th day of October, 1949. J. J. Shea, City Clerk of Dubuque, Iowa.'

The trial court sustained the special appearance upon the ground 'that the notice was served upon the clerk by the attorney for the plaintiff and that Rule 52 R.C.P. disqualified the attorney for plaintiff from serving the notice of appeal.' The plaintiff appeals.

I. Section 391.88, Code of 1950, I.C.A., deals with an appeal in such cases. Said section provides that the person appealing shall be designated as plaintiff and the city or town as defendant. Under this section, appellant is plaintiff and the city of Dubuque, Iowa, the defendant.

The section dealing with perfecting such appeal follows: '391.89. Perfecting appeal. Said appeal must be perfected: 1. By serving upon the mayor or clerk, in the manner in which original notices in ordinary actions are served, within fifteen days from the date of said levy, a written notice of appeal, signed by the plaintiff or by his agent or attorney, directed to the defendant, and designating with reasonable certainty the assessment appealed from and the property of plaintiff affected thereby'.

Par. 2 of said section deals with the filing and approval of the bond. Par. 3 relates to the filing of the petition and therein a brief statement of the grounds of complaint against the assessment. Section 391.90 provides that the trial is in equity.

Rule 56, Rules of Civil Procedure, provides in part as follows: 'Personal Service. Original notices are 'served' by delivering a copy to the proper person. Personal service may be made as follows: (a) Upon any individual aged 18 years or more who has not been adjudged incompetent, either by taking his signed, dated acknowledgment of service endorsed on the notice; or by serving him personally * * * (h) Upon any city or town by serving its mayor or clerk.'

Rule 52 deals with who can serve such notice. We quote: 'Original notices may be served by any person who is neither a party nor the attorney for a party to the action.' Said Rule 52 superseded section 11058, Code 1939, which section provided an original notice could not be served by a party. The record fails to show that any other return of service appeared on plaintiff's notice of appeal.

Plaintiff does not seriously challenge the claim of defendant that a party or his attorney cannot under Rule 52 serve notice thereof. In essence his claim is that such rule (No. 52) while superseding the statute, extended rather than limited the authority of a defendant to acknowledge service. In other words, plaintiff's claim is that while his attorney could not serve an original notice by reading or delivering to defendant a copy, still he had a right to receive from the defendant an acknowledgment of service as provided in paragraph (a) Rule 56 R.C.P.

We do not so read the rules. In Rule 56(a) the taking of an acknowledgment of service is merely one of the methods whereby 'personal service may be made' and Rule 52 is a prohibition against an attorney for a party serving an original notice. Under the present rules the attorney for a party cannot make service of an original notice in any manner--either by serving defendan...