Doer v. The Southwestern Mutual Life Ass'n

• Decision Date: 10 October 1894
• Citation: 60 N.W. 225,92 Iowa 39
• Parties: ALEX P. DOERR, by His Next Friend, JOHN A. ROWAN, v. THE SOUTHWESTERN MUTUAL LIFE ASSOCIATION, Appellant
• Court: Iowa Supreme Court

60 N.W. 225

92 Iowa 39

ALEX P. DOERR, by His Next Friend, JOHN A. ROWAN, v. THE SOUTHWESTERN MUTUAL LIFE ASSOCIATION, Appellant

Supreme Court of Iowa, Des Moines

October 10, 1894

Appeal from Muscatine District Court.--HON. C. M. WATERMAN, Judge.

ACTION upon a policy of insurance issued by defendant company upon the life of John Doerr. The district court sustained a demurrer to defendant's answer, and, defendant electing to stand upon its answer, judgment was rendered against it and it attempted to appeal.--Dismissed.

Appeal DISMISSED.

Binford & Snelling for appellant.

E. M Warner and Detwiler & Doran for appellee.

OPINION

DEEMER, J.

We are confronted with a motion to dismiss the appeal in this case for the reason that no notice was served upon the appellee or his attorney, as required by McClain's Code, section 4407. The following is a copy of the paper which is denominated a "notice of appeal:"

"In the District Court of Iowa in and for Muscatine County.

"Alex. P. Doerr, by his friend, John A. Rowan, Plaintiff v. "The Southwestern Mutual Life Association, Defendant.

"NOTICE OF APPEAL.

"To the above named plaintiff, or to E. M. Warner and Detwiler & Doran, his attorneys, and to W. H. Hughes, clerk of said court:

"You are hereby notified that the defendant in said action has appealed from the judgment and order of the court sustaining the demurrer of plaintiff to the affirmative defense of the defendant, rendered in favor of the plaintiff at the January term thereof, on March 4, 1893, to the supreme court of Iowa and that said appeal will come on for hearing and trial in said court, at the May term thereof, to be held at Des Moines, commencing on the ninth day of May, A. D. 1893.

"Dated, March 7, 1893.

"Attorneys for the Defendant."

It will be noticed that this paper is not signed by any person, and bears simply the descriptive words, in print, "Attorneys for the Defendant." The point is made that this notice is not sufficient to bring the case into the court. Service of notice of appeal upon the adverse party, or his attorney, and upon the clerk of the district court, is essential to give this court jurisdiction. Lewis v. Miller, 4 Greene 95; Phillips v. Follet, 69 Iowa 39, 28 N.W. 425. Section 3178 of the Code provides: "An appeal is taken by the service of notice in writing on the adverse party, his agent, or an attorney who appeared for him, in the case in the court below, and also upon the clerk of the court wherein the proceedings were had, stating the appeal from the same, or from some specific part thereof, defining such part." It is insisted by attorneys for defendant that this section does not require the notice to be signed; that, at most, the notice is defective; and that, as the plaintiff has appeared in response thereto, and argued the case on the merits, he has waived the defects, if any, in the notice. While the statute does not, in terms, require the notice to be signed, yet we think this is essential to its validity. It must purport to emanate from some one, in order that the adverse party may be advised that it comes from a proper source. To be binding upon the appellant, it ought to be subscribed, either by himself, or some one authorized to act for him. Without such attestation the document is, in effect, no more than a blank piece of paper. It is not a case of defective notice, but of no notice. Wade, Notice, section 1209; Larrabee v. Morrison, 15 Minn. 196 (Gil. 151); Eaton v. Manitowoc Co., 42 Wis. 317. The plaintiff, through his attorneys, accepted service of the paper upon him, and it is urged that he is now estopped from taking advantage of the objection. If the defect was a mere irregularity, there would be much force in this position; but, as the notice is jurisdictional, and can not, as we shall hereafter show, be waived by the parties, the contention is without merit. Larrabee v. Morrison, supra.

It is also claimed by defendant, and it supports its contention by affidavit, that the abstract which states that notice of appeal was duly served was an agreed abstract, and that plaintiff can not be now heard to object to the notice. The defendant's abstract does not purport to be agreed to by plaintiff or his attorneys, and the agreement, if any, is attempted to be shown by the affidavits of one of the defendant's attorneys. An agreement between attorneys can not be established in this way (Code, section 213); hence there is no force in this position.

It is further contended that, as plaintiff appeared...