Davis v. Jones

• Decision Date: 26 July 1956
• Docket Number: No. 48990,48990
• Parties: Helen DAVIS, Appellee, v. Harry A. JONES, Appellant.
• Court: Iowa Supreme Court

Page 6

78 N.W.2d 6

247 Iowa 1031

Helen DAVIS, Appellee, v. Harry A. JONES, Appellant.

No. 48990.

Supreme Court of Iowa.

July 26, 1956.

Gilbert & Stoddard, Oskaloosa, for appellant.

Messer, Hamilton & Cahill, Iowa City, and E. Raymond Mick, Knoxville, for appellee.

WENNERSTRUM, Justice.

The plaintiff brought an action for damages against the defendant wherein he sought recovery of a substantial amount by reason of injuries claimed to have resulted from the alleged negligence of the defendant. The district court of Marion County overruled defendant's special appearance wherein the jurisdiction of the court was questioned. This court, on application by defendant, granted to him the right to an interlocutory appeal, which he has perfected.

The automobile accident which caused the plaintiff's injuries occurred on March 19, 1953. On March 18, 1955 plaintiff filed a petition, and on the same day an amendment, wherein it was alleged the defendant was responsible for her injuries, that at the time of the accident he was a resident of Marion County, Iowa but thereafter and before plaintiff's petition was filed became a nonresident of the state. The plaintiff sought to obtain service of an original notice on the defendant by procedure under Section 321.498(1-3), 1950 Code, as amended, I.C.A. by filing a copy of an original notice, with copy of the petition and amendment thereto with the Iowa Public Safety Commissioner, and on the defendant by mailing to him at his then known address in Omaha, Nebraska a notice of the filing made with the commissioner. Section 321.501(1-2), 1950 Code, I.C.A.

The defendant in his special appearance, and supporting affidavit, alleged at the time of the accident he was a resident of the State of Iowa, as alleged in plaintiff's petition, as amended; that Section 321.498(1-3), 1950 Code, was amended, which amendment was passed by the 55th General Assembly, 1953 and became effective July 4, 1953, I.C.A. Article III, Section 26, Constitution of Iowa, I.C.A.; Section 3.7, 1950 Code, I.C.A. It is further alleged the amendment is not retroactive, has no application to an accident occurring prior to the effective date of the amendment, and consequently the court is without jurisdiction of the person of the defendant and no proper service upon him has been made.

The amendment to which we refer is now noted as subsection 4 of Section 321.498, 1954 Code, I.C.A. and is as follows: 'The term 'nonresident' shall include any person who was, at the time of the accident or event, a resident of the state of Iowa but who removed from the state before the commencement of such action or proceedings.'

The defendant maintains the trial court erred in overruling his special appearance in that prior to July 4, 1953 the then applicable Iowa statutes did not provide for the obtaining of jurisdiction by service of an original notice on a person who had been a resident of the State of Iowa at the time of an automobile accident although subsequent thereto and prior to the commencement of an action such person became a nonresident of the State. It is also contended the trial court erred in holding the amendment is retroactive and applicable to the situation presented in the present litigation.

I. We must determine whether the amendment to the statute previously quoted is retrospective or prospective only. In commenting on legislative intent and this problem generally it is stated in 50 Am.Jur., 'Statutes', Sec. 478, pp. 494-500: 'The question whether a statute operates retrospectively, or prospectively only, is one of legislative intent. In determining such intent, the courts have evolved a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it to operate prospectively only, and not retroactively. Indeed, the general rule is that they are to be so construed, where they are susceptible of such interpretation and the intention of the legislature can be satisfied thereby where such interpretation does not produce results which the legislature may be presumed not to have intended, and where the intention of the legislature to make the statute retroactive is not stated in express terms, or clearly, explicitly, positively, unequivocally, unmistakably, and unambiguously shown by necessary implication or terms which permit no other meaning to be annexed to them, preclude all question in regard thereto, and leave no reasonable doubt thereof. Ordinarily, an intention to give a statute a retroactive operation will not be inferred. If it is doubtful whether the statute or amendment was intended to operate retrospectively, the doubt should be resolved against such operation. * * *'

We are conscious of the fact that section 4.2, 1950, 1954 Code, I.C.A. which relates to construction of statutes, states: 'The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.'

However, this court has held: '* * * All statutes are to be construed as prospective in their operation, unless the contrary is distinctly expressed or is to be clearly implied. * * *' Gilbertson v. Ballard, 125 Iowa 420, 421, 101 N.W. 108. See also In re Estate of Culbertson, 204 Iowa 473, 484, 215 N.W. 761.

And as indicative of the state of the law in a situation such as is presented in the instant case we must take cognizance of our holding in Welsh v. Ruopp, 228 Iowa 70, 74, 289 N.W. 760, 762, where we stated: '* * * However, it is apparent that upon attack by special appearance and motion to quash, a showing was required of the facts essential to jurisdiction. Pendy v. Cole, 221 Iowa 199, 233 N.W. 47. One of such basic jurisdictional facts was the nonresidence of the defendants at the time the use and operation of the vehicle allegedly caused the damage upon which the suit was based. Nonresidence at the time of the accident was required. Jurisdiction over defendants who were residents of Iowa at the time of an automobile accident and who later became nonresidents could not be secured by this special method of substituted service. * * *'

In Hodges v. Brett, 4 G. Greene 345, 346, we stated: '* * * The only safe rule, in cases where jurisdiction depends upon the process, is to require a strict observance of the statute.'

And in Bradley Mfg. Co. v. Burrhus, 135 Iowa 324, 112 N.W. 765, 766, this court gave consideration to the matter of substituted service and stated: '* * * 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. * * *'

The plaintiff has cited Bascom v. District Court, 231 Iowa 360, 1 N.W.2d 220, wherein we held a venue statute should be construed to apply retroactively. See also Dowlen v. Fitch, 1954, 196 Tenn. 206, 264 S.W.2d 824, 266 S.W.2d 357, 41 A.L.R.2d 791, and annotations following. We hold a venue statute should not be considered on the same basis as one pertaining to a jurisdictional question involving the service of an original notice.

II. The rule that statutes will be construed to be prospective only is subject to an exception in the case of a statute relating to remedies or procedure. This exception does not apply where there is no remedy whatever before the statute was enacted. This appears to be particularly true when the statute creates new rights. 82 C.J.S., Statutes, § 421, pp. 996-997. It must be considered the new s...