Farley v. Carter

• Decision Date: 29 September 1936
• Docket Number: 43493.
• Citation: 269 N.W. 34,222 Iowa 92
• Parties: FARLEY v. CARTER, Judge.
• Court: Iowa Supreme Court

269 N.W. 34

222 Iowa 92

FARLEY v. CARTER, Judge.

No. 43493.

Supreme Court of Iowa.

September 29, 1936

Appeal from District Court, Clarke County; H. H. Carter, Judge.

Action in certiorari to review the action of the lower court in overruling a special appearance filed by the defendant in the case of Paul Jenks v. L. V. Farley.

Writ sustained.

O. M Slaymaker, R. E. Killmar, and D. D. Slaymaker, all of Osceola, for petitioner.

Isador Robinson, of Des Moines, for respondent.

KINTZINGER, Justice.

An action entitled Paul Jenks, Plaintiff, v. L. V. Farley Defendant, was commenced in the district court of Clarke county for the November term, 1935. The original notice therein was served upon the defendant by Isador Robinson, the attorney for plaintiff. Defendant in that action, who is the petitioner here, filed a special appearance attacking the jurisdiction of the lower court on two grounds:

First that the original notice is insufficient to give jurisdiction because it fails to state " in general terms the nature of plaintiff's cause of action," as required by section 11055 of the Code of 1935. And

Second because the original notice was served by the attorney for the plaintiff, who, as such, should be regarded as " a party to the action," and, as such, is not permitted to serve the notice under section 11058 of the Code of 1935.

The lower court sustained the jurisdiction, and the defendant therein, who as petitioner here, brings this action in certiorari testing the jurisdiction of the lower court.

I.

The petitioner herein contends that the lower court had no jurisdiction, because the original notice served in that action did not state " in general terms the nature of the plaintiff's cause" of action, as required by section 11055 of the Code of 1935.

The following is the material part of the original notice in that action:

" You are hereby notified that on or before the 8th day of November, 1935, the petition of the plaintiff * * * will be filed in the office of the Clerk of the District Court * * *, claiming of you the sum of $1214.68 and interest at 6% * * * from October 24, 1930, payable to this plaintiff in the foregoing sum and the debt represented thereby. For further particulars, see petition when filed.

And unless you appear thereto, etc., * * * default will be entered against you and judgment entered accordingly.

Dated At Osceola, Iowa, this 24th day of October, 1935.

Isador Robinson, Attorney for Plaintiff.

Return of Service.

Served personally on L. V. Farley, defendant, in Clarke County, Iowa, by Isador Robinson, attorney for plaintiff."

Among the specifications required of an original notice by section 11055 of the Code are:

(1) That it be " signed by the plaintiff or his attorney."

(2) That it inform the defendant " that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court," etc.

(3) That the original notice state " in general terms the cause or causes thereof, and if it is for money, the amount thereof," And

(4) " That unless he appears * * * and defends before noon of the second day of the term, * * * judgment * * * [will be] rendered against him."

It is contended that the requisite of the third specification above mentioned was not complied with. Each of the foregoing specifications is of equal rank and is by statute required to be included in the notice. It will be noted that one of the specific requisites of the statute is that the original notice state " in general terms the cause or causes thereof, and if it is for money, the amount thereof."

The petitioner contends that the notice served fails to state in " general terms the cause" of action sued on . The only statement made in the original notice with reference to the cause of action sued on is the following: " You are hereby notified that * * * the petition * * * will be filed * * *, claiming of you the sum of $1214.68 and interest * * *, payable to this plaintiff in the foregoing sum and the debt represented thereby. For further particulars, see petition when filed." Is this a sufficient statement, in general terms, of the nature of plaintiff's cause of action?

Among other specifications required by statute is that the original notice be signed by the plaintiff or his attorney. It is the settled rule in this state than an unsigned notice does not meet the requirements of the statute, and is fatal. Hoitt v. Skinner, 99 Iowa 360, 68 N.W. 788; Gardner v. Beck, 195 Iowa 62, 189 N.W. 962; Citizens' Bank v. Taylor, 201 Iowa 499, 207 N.W. 570.

Another specification required is that it inform the defendant when and where the petition will be filed. It has been repeatedly held that a failure to include this specification would also be fatal. Decatur County v. Clements, 18 Iowa 536; Kitsmiller v. Kitchen, 24 Iowa 163; Boals v. Shules, 29 Iowa 507; Cummings v. Landes, 140 Iowa 80, 117 N.W. 22; Pendy v. Cole, 211 Iowa 199, 233 N.W. 47.

Each of the specific requisites of the statute is of equal rank with the others, and a failure to include any one is as fatal as the failure to include another. Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919.

In Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919, 920, in referring to the failure to comply with the specific requisites of the statute, this court said: " The specific requisites of the statute are not to be wholly ignored. The statute provides for a certain degree of formality as requisite to confer jurisdiction. For instance, an original notice must be in writing. Oral notice, however emphatic or frequent, will confer no jurisdiction. If the writing is essential to the jurisdictional power of the notice, then it would seem equally as essential that the statutory requisites should be incorporated in such writing. We are of opinion that the defects in this notice cut so deeply as to destroy its essential character as a statutory notice and that for such reason it should be deemed not simply defective, but wholly void."

Over seventy years ago, this court, in Moody v. Taylor, 12 Iowa 71, held that where the original notice contained only a statement that plaintiff claimed of the defendant $138 and interest from the 25th day of August, 1859, it was fatally defective because of a failure to comply with a statute then in force requiring the original notice to " briefly state the substance of the remedy sought." It was there held that an original notice simply claiming of the defendant $138 was not a sufficient compliance with the requirements of the statute, because the statute by implication necessarily required a statement of the nature and subject of the action . The statute in existence at that time was section 1715 of the Code of 1851, and required the original notice, among other things, to " state briefly the substance of the remedy sought." The only difference between section 1715 of the Code of 1851 and section 11055 of the Code of 1935 is that under the early statute the original notice was required to " state briefly the substance of the remedy sought," while the present statute requires the notice to state " in general terms the cause of action" sued on. A comparison between the present and the old st...