David Bradley Mfg. Co. v. Burrhus
| Decision Date | 03 July 1907 |
| Citation | 112 N.W. 765,135 Iowa 324 |
| Parties | DAVID BRADLEY MANUFACTURING COMPANY, Appellant, v. A. P. BURRHUS, Appellee |
| Court | Iowa Supreme Court |
Appeal from Buchanan District Court.--HON. A. S. BLAIR, Judge.
ACTION on a promissory note. The note was executed by Daniel Arnold to plaintiff, and on the back thereof appears the name of defendant Burrhus as guarantor of payment. Both Arnold and Burrhus were named as defendants in the petition, and Arnold was personally served with notice. As to Burrhus, it is the return of the serving officer that the notice was served "by leaving a copy thereof at the house of said A. P Burrhus, in Liberty township, Buchanan county, with Mrs Burrhus, his wife," etc. Arnold appeared and filed answer and counterclaim. Burrhus did not appear; he was adjudged to be in default, and judgment was entered against him for the amount due on the note. In this situation plaintiff dismissed as to the defendant Arnold. Thereafter Burrhus appeared and moved that the default and judgment against him be set aside, on this, among other grounds "That the court had no jurisdiction to enter judgment against this defendant; there having been no proper service and return of notice of the action upon him." With the motion, the defendant presented a joint answer denying liability on the note; the defendant Arnold repleaded, insisting upon his counterclaim and demand for a judgment in his favor. The motion to set aside was sustained on the ground stated, and from such ruling plaintiff appeals.
Affirmed.
Cook & Cook, for appellant.
Warren Chase and E. B. Abbott, for appellee.
The motion was supported by an affidavit to the effect that the residence of Burrhus at all the times in question was in the incorporated town of Quasqueton, a town situated within the boundary lines of Liberty township, in Buchanan county. The fact thus set forth was not denied by plaintiff, and on such affidavit, and the matters of record in the case, the motion was submitted. It is suggested by counsel for appellant in argument in this court that defendant had no right to proceed by motion; that his only remedy was by petition under Code, section 4091 et seq., having relation to the vacation or modification of judgments after the term at which entered. We shall not enter upon a discussion of this question of practice. Plaintiff appeared to the motion as filed in the court below, and filed resistance based on the grounds: First, that the return of service as made was sufficient to confer jurisdiction on the court; second, that defendant not only had actual knowledge of the pendency of the action as against him, but had actual notice of the service of the original notice upon his wife at his place of residence, as stated in the officer's return. No question was made respecting the form of the proceeding, and, as the court had jurisdiction of the subject-matter and the parties, the objection as now presented in this court comes too late.
The first question, then, with which we have to deal is, stated generally: Did the court have jurisdiction in fact to render the default judgment? While the question is not altogether free from difficulty, we are agreed that it should be answered, as it was answered by the court below, in the negative. To begin with, it is clear that essential to authority to proceed to judgment there must be not only service of notice, but a return of service. 18 Ency. of Pleading & Practice, 905. Now, as provided by statute, one method of making service of notice is by substitution; that is, by leaving a copy at the usual place of residence of the defendant with some member of his family, etc., when the defendant is not found within the county of his residence. Code, section 3518. And in respect of the required return, it must state at whose house the copy was left "and that it was the usual place of residence of the defendant, and the township, town or city in which the house was situated, the name of the person with whom the same was left," etc. Code, section 3519. These provisions of statute must be considered mandatory in character. 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, that the operation thereof may not be abridged or extended by the courts. Bell v. Stevens, ...
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