Coster v. Jensen

• Decision Date: 13 November 1934
• Docket Number: No. 42524.,42524.
• Citation: 218 Iowa 1215,257 N.W. 303
• Parties: COSTER et al. v. JENSEN.
• Court: Iowa Supreme Court

218 Iowa 1215

257 N.W. 303

COSTER et al.

v.JENSEN.

No. 42524.

Supreme Court of Iowa.

Nov. 13, 1934.

Appeal from District Court, Jasper County; D. W. Hamilton, Judge.

This is an action in equity to vacate a judgment and decree of foreclosure, upon the ground that no service of the original notice had been made upon the principal defendant therein. From a decree as prayed, the defendant appeals.

Affirmed.

James F. Page, of Newton, and Korf & Korf, of Des Moines, for appellant.

Henry Silwold, of Newton, for appellees.

KINTZINGER, Justice.

This is an action to set aside a judgment of $2,921 and decree of foreclosure entered on October 14, 1931, against the plaintiff Phearman, in an action wherein G. B. Jensen, defendant herein, was plaintiff, and Charles H. Phearman, one of the plaintiffs herein, was defendant. The petition, as amended, alleges that the judgment referred to was obtained by default, upon substituted service alleged to have been made by J. F. Page, attorney for the plaintiff in the former action; that the return of service does not state (1) that the place of service was in the usual place of defendant's residence, (2) does not name the township where the service was made, and (3) does not state that said Phearman was not found in the county of his residence. No other service was ever made upon the defendant, and he did not appear in that action. The petition also alleges that during the entire day the purported service was made, on July 27, 1931, the defendant, Phearman, was in Jasper county, Iowa. The court below canceled and vacated the judgment and decree entered in the former action, on the ground that the court had no jurisdiction for want of a valid service of notice in the former action.

The only question presented upon this appeal is whether or not a valid substituted service of the notice in the former action was ever had upon said Phearman.

The return of service was made by James F. Page, an attorney for the plaintiff in that action, and attempted to show a substituted service. It is conceded that the first return of service was defective. At the trial of the instant case, the defendant here amended his return for the purpose of showing that service was in fact made. The amended return states that Page “served the * * * notice upon Charles H. Phearman, * * * by leaving a true copy * * * at the house of said Charles H. Phearman, his usual place of residence * * * with Mabel Phearman, his wife, a member of his family over fourteen years of age, on July 27, 1931, in Des Moines Township, Jasper County, Iowa, said defendant not being found in said county.”

[1] Appellant contends that the court had jurisdiction because the amended return shows that there was in fact a substituted service, as authorized by statute. It is the settled law in this state that it is the fact of service, and not the return, that gives jurisdiction, and that, if the fact of service is shown by an amendment to the return or otherwise,the court has jurisdiction. Mintle v. Sylvester, 197 Iowa, 424, 197 N. W. 305;Buckmiller v. Creston Ry. Co., 164 Iowa, 502, 146 N. W. 447;Lawrence v. Howell, 52 Iowa, 62, 2 N. W. 617.

In the absence of more, this contention would be good, but appellee contends that the substituted service must be made in accordance with the statute authorizing it. The law authorizing substituted service provides: “If defendant is not found within the county of his residence, * * * service may be had, by leaving a copy of the notice at his usual place of residence with some member of his family over fourteen years of age.” Code, § 11060, par. 2. Substituted service is, therefore, authorized only, “if defendant is not found within the county of his residence.” This clearly implies that at least some effort to find the defendant should be made in the county of his residence. Of course, in the absence of a showing to the contrary, a return showing that a defendant was not found in the county of his residence would be sufficient. The undisputed evidence, however, shows that the defendant, at the time of the purported service, was in the county of his residence, and that Mr. Page, who attempted to serve the notice, was then informed by Mr. Phearman's wife that her husband was over at Mr. DeReus that afternoon threshing, and that he was there at the time Mr. Page was at her house to make the service, on July 27, 1931. Mr. DeReus and other farmers threshing at his place that day all testified that Mr. Phearman was at the DeReus place that afternoon helping thresh. The record shows that the place where Phearman was threshing was only about one mile from his home in the same county.

[2] It is the settled rule of law that the return of service on an original notice is presumed to be correct, and can be overcome only by clear and convincing evidence to the contrary. Appellee claims, however, that if the defendant was in fact in the county of his residence and could have been readily located, and if the person making the service knew of his whereabouts but made no effort whatever to serve him personally, then the fact of service has been successfully impeached.

It is the settled rule of law that the return of service on the original notice is not conclusive and may be overcome by clear and convincing evidence disclosing its falsity. 21 R. C. L. 1321; Hoitt v. Skinner, 99 Iowa, 360, 68 N. W. 788;Thompson Bros. v. Phillips, 198 Iowa, 1064, 200 N. W. 727;Town of Casey v. Hogue, 204 Iowa, 3, 214 N. W. 729;Wyland v. Frost, 75 Iowa, 209, 39 N. W. 241;Browning v. Gosnell, 91 Iowa, 448, 59 N. W. 340;Des Moines C. & C. Co. v. Marks Inv. Co., 197 Iowa, 589, 195 N. W. 597, 197 N. W. 628.

[3][4] The statute permitting substituted service must be substantially complied with, and if a defendant is actually in the county, and knowledge of his whereabouts is known to the serving officer, it is at least necessary to make a reasonable effort to locate him, and the service is invalid if his location can in fact be readily discovered. 50 C. J. 491; State v. Allen, 100 Iowa, 7, 69 N. W. 274;Bradley Mfg. Co. v. Burrhus, 135 Iowa, 324, 112 N. W. 765;Nibeck v. Reidy, 171 Iowa, 54.

In Bradley Mfg. Co. v. Burrhus, 135 Iowa, 324, loc. cit. 327, 112 N. W. 765, 766, this court said: “The method of procedure is extraordinary in character, and allowable only because specifically authorized; and, in common with other legislative acts which mark a departure from the ordinary, the provisions must be strictly construed in the sense, at least,...