Esterdahl v. Wilson

• Decision Date: 15 August 1961
• Docket Number: No. 50339,50339
• Parties: Audrey ESTERDAHL, Appellant, v. Robert D. WILSON, Appellee. Donovan J. ESTERDAHL, Appellant, v. Robert D. WILSON, Appellee.
• Court: Iowa Supreme Court

Page 241

110 N.W.2d 241

252 Iowa 1199

Audrey ESTERDAHL, Appellant, v. Robert D. WILSON, Appellee.

Donovan J. ESTERDAHL, Appellant, v. Robert D. WILSON, Appellee.

No. 50339.

Supreme Court of Iowa.

Aug. 15, 1961.

Filseth & Schroeder, by A. Fred Berger, Jr., Davenport, for appellants.

Kopf & Christiansen, by Clarence H. Christiansen and George A. Goebel, Davenport, for appellee.

THOMPSON, Justice.

On January 21, 1960, Audrey Esterdahl and Donovan J. Esterdahl filed separate petitions in the Scott District Court against the same defendant claiming damages arising from the same automobile accident, which occurred on February 18, 1958. The defendant being a resident of the State of Illinois, each plaintiff attempted to secure jurisdiction by serving notice of the suits under sections 321.498 to 321.505, inclusive, of the Code of 1958, I.C.A. It is conceded that these notices complied with all the requirements of the code sections last above referred to except that the mailing required by section 321.501 was by certified mail instead of by restricted certified mail. The trial court held that this was a fatal defect in each case, and sustained defendant's special appearances. After the filing of the special appearances but before the court's rulings thereon, and more than two years after the date of the occurrence of the accident upon which the actions are based the plaintiffs again attempted to obtain jurisdiction of the defendant by serving notices under sections 321.498-321.505 inc., supra, which complied with all the requirements of said sections. Thereupon the defendant filed answers which among other defenses pleaded the statute of limitations. The plaintiffs each moved to strike this defense, and their motions were denied. From the rulings upholding the special appearances and denying the motions to strike we have this appeal, the two cases being consolidated in this court. Leave to appeal was duly granted. We shall hereafter refer to the plaintiffs as 'the plaintiff,' and to all rulings likewise in the singular.

I. We have first the question of the correctness of the trial court's ruling sustaining the special appearance which denied that the plaintiff had acquired jurisdiction because the notice was sent to the defendant by certified mail instead of by restricted certified mail. At this point section 321.501 is important, and we quote it:

'Manner of service. Plaintiff in any such action shall cause the original notice of suit to be served as follows:

'1. By filing a copy of said original notice of suit with said commissioner, together with a fee of two dollars, and

'2. By mailing to the defendant, and to each of the defendants if more than one, within ten days after said filing with the commissioner, by restricted certified mail addressed to the defendant at his last known residence or place of abode, a notification of the said filing with the commissioner.'

We find also that section 618.15 is significant, and we set it out:

'Service by certified mail. Wherever used in this Code, the following words shall have the meanings respectively ascribed to them unless such meanings are repugnant to the context:

'1. The words, 'certified mail' mean any form of mail service, by whatever name, provided by the United States post office where the post office provides the mailer with a receipt to prove mailing.

'2. The words, 'restricted certified mail' mean any form of certified mail as defined in subsection 1 which carries on the face thereof, in a conspicuous place where it will not be obliterated, the endorsement, 'Deliver to addressee only', and for which the post office provides the mailer with a return receipt showing the date of delivery, the place of delivery, and person to whom delivered.'

It will be observed that the material distinction between 'certified' mail and 'restricted certified' mail is that the latter contains on the face of the container the words 'Deliver to addressee only'; and a return receipt will be furnished by the post office department showing the date of delivery and the person to whom delivered. So the legislature has provided a certain way for the defendant to obtain notice; it must reach him personall and no substitution by delivering to any other person is permitted.

In the case at bar the 'certified' mail was delivered to the defendant's wife, and he received it from her shortly thereafter and within the time required for appearance. We have therefore the narrow question whether the failure to send the notice by 'restricted' certified mail was such a defect as that the trial court did not acquire jurisdiction.

It is the general rule that where the method of service provided is extraordinary in character and is allowed only because specially authorized and is valid as a means of obtaining jurisdiction the statutory procedure must be strictly followed. Perhaps the leading case in Iowa on the point is Bradley Mfg. Co. v. Burrhus, 135 Iowa 324, 327, 112 N.W. 765, 766, where we 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, that the operation thereof may not be abridged or extended by the courts.' We quoted this with approval in Davis v. Jones, 247 Iowa 1031, 1035, 78 N.W.2d 6, 8.

To the same effect is Jermaine v. Graf, 225 Iowa 1063, 1066, 283 N.W. 428, 430. There, in answer to the contention that the Iowa code provides that the rule that statutes in derogation of the common law are to be strictly construed has no application here, we said: 'But this court has repeatedly held that statutes providing for substituted service of original notice present a method of procedure that is extraordinary in character, and allowed only because specially authorized. We have held that, such statutes being the only authority for the extraordinary procedure, to justify the procedure the facts recited in the statute must appear.' Authorities are cited. Hayes v. Jansen, D.C., 89 F.Supp. 1, 3, decided in the Federal Court for the Northern District of Iowa and so following the established Iowa law, contains this statement: '* * * in determining whether or not jurisdiction has been acquired in substituted service cases of any character, a narrow and literal compliance with the statutory requirements would of necessity need be shown by a plaintiff to satisfy the statute. The fact that the Iowa Supreme Court have consistently followed this rule since and long prior to the enactment of the nonresident * * * service statutes is almost too fundamental to require citation of authorities.'

Further discussion of the question seems needless, since the plaintiff in reply argument admits this was the rule in Iowa prior to the decision of Jacobsen v. Leap, 249 Iowa 1036, 88 N.W.2d 919 and State ex rel. Hanrahan v. Miller, 250 Iowa 1358, 96 N.W.2d 474. It is the thought of plaintiff's counsel that these cases have changed the rule. We do not agree.

Both plaintiff and defendant have argued the point on the assumption that the service provided by our nonresident motorist statutes is a substituted one. Several of our cases also proceed upon this theory. Whether this is correct we do not find it necessary to decide. It is at least, and certainly, an extraordinary method of procedure. It is the thoroughly established rule that jurisdiction of the defendant in actions in personam cannot be obtained by service on him outside the state. Service by publication may be had when personal service within the state cannot be obtained, in specified cases listed in R.C.P. 60, 58 I.C.A. But these are all in actions in rem. Personal service outside the state generally is equivalent to publication. R.C.P. 64. It is only in nonresident motor vehicle damage suits that personal jurisdiction of a defendant may be had through service beyond the borders of Iowa. A special procedure is set up for this; but it must be listed as high among the 'extraordinary procedures' referred to in the authorities in which a strict and literal compliance with the statutes is required. In fact, it may fairly be said to be an 'extraordinarily extraordinary' procedure.

II. Three Iowa cases are cited by the plaintiff as authority for the contention that we have now relaxed the rule of strict compliance. Two of them--Jacobson v. Leap and State ex rel. Hanrahan v. Miller--we have referred to above. Neither of these is in point. They have nothing to do with the nonresident motor vehicle service of notice cases. In Jacobson v. Leap, we made it clear that we were not discussing the manner of service on nonresident vehicle owners or operators, when we said: 'The other defendants, both foreign corporations, were served with notice as provided by section 321.501, Code of 1954, I.C.A.' Jacobson v. Leap, 249 Iowa loc. cit. 1038, 88 N.W.2d loc. cit. 920. The question there involved was the contents of the notice, and our discussion was entirely to the point whether it complied sufficiently with R.C.P. 50, which defines what the notice shall contain, in all cases. The same is true of State ex rel. Hanrahan v. Miller, supra. We were not, in either case, dealing with an 'extraordinary procedure' such as the manner of service of the notice on a nonresident defendant. They applied a liberal rule to the question of contents of...