Glenn v. Holub, 28.
| Decision Date | 20 January 1941 |
| Docket Number | No. 28.,28. |
| Citation | 36 F. Supp. 941 |
| Parties | GLENN v. HOLUB. |
| Court | U.S. District Court — Southern District of Iowa |
Raymond A. Smith (of Kimball, Peterson, Smith & Peterson), of Council Bluffs, Iowa, and Genung & Genung, of Glenwood, Iowa, for plaintiff.
George Boland, of Omaha, Neb., and Cook & Cook, of Glenwood, Iowa, for defendant.
The above-entitled action came on for hearing in open court at Council Bluffs, Iowa, on the 8th day of January, 1941, on a special appearance and motion to quash the return of service of original notice and dismiss the cause. Evidence in the form of affidavits was considered and the matter argued and submitted.
Defendant attacks the service of notice on the ground that the Iowa statute permitting such a service is unconstitutional as against a non-resident, and that the evidence does not show facts sufficient to form a proper basis for the invocation of the method of substituted service provided by the Code of Iowa against non-residents in automobile collision cases. Secs. 5038.01 to 5038.08, Code of Iowa, 1939.
It is unnecessary to determine whether notice on the defendant by a registered letter to his "last known residence or place of abode" is sufficient to answer a charge of discrimination against non-residents, as I am satisfied from the evidence adduced in the form of affidavits at the trial that no such written notice was given to the defendant at his last known residence or place of abode.
The Supreme Court of Iowa has not passed upon the question of what constitutes "last known residence or place of abode," but they have on occasions reiterated 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; and to justify the procedure under such statutes, being the only authority for the extraordinary procedure, the facts recited in such statutes must appear, and when attacked, the burden is upon the plaintiff or person serving the notice to establish such facts. It must also be shown that the conditions required to permit the giving of the notice by mail existed at the very time of the service.
The accident upon which the suit is instituted occurred on March 6, 1940, petition was filed August 17, 1940, and removed to this court on October 12, 1940. The affidavits establish that the tractor-trailer involved in the accident was owned by the defendant, Ed Holub, a resident of Texas, and that he had maintained his residence in Alamo, Texas, since November 10, 1939, and was not a resident of Cotulla, Texas, after that time.
The return and affidavit of plaintiff's attorney establish that he investigated the accident at the time it occurred and was then told by the driver of the truck that it was owned by Ed Holub and that he resided at Cotulla, Texas; that the license plates upon the equipment at the time of the accident bore Texas license No. 129-435 and that he secured the registration card or receipt issued for the registration of said tractor-trailer for the year 1939, and they showed the ownership of the...
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...Co., 1941, 231 Iowa 231, 1 N.W.2d 202; Skutt v. Dillavou, 1944, 234 Iowa 610, 13 N.W.2d 322, 155 A.L.R. 327. See also Glenn v. Holub, D.C. Iowa 1941, 36 F.Supp. 941; Ransom v. Sipple Truck Lines, D.C.Iowa 1943, 52 F.Supp. 521; Kemp v. Creston Transfer Co., D.C. Iowa 1947, 70 F.Supp. The ear......
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Shanklin v. Bender
...can be justified only by requiring plaintiffs to comply strictly with the procedural requirements of the statute, Glenn v. Holub, 36 F.Supp. 941 (S.D.Iowa 1941). We note that the Illinois courts have long required that reasonable diligence must be exercised by plaintiffs in endeavoring to l......
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Brenner v. Margolies
...none existed before; therefore, it must be strictly complied with. Dusminski v. Ladenheim, D.C.E.D.N.Y., 43 F.Supp. 139; Glenn v. Holub, D.C.S.D. Iowa, 36 F.Supp. 941. Plaintiff argues that because defendant was, at the time of the collision, driving a vehicle bearing Virginia license plate......
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...12 A.D.2d 863, 210 N.Y.S.2d 822; State ex rel. Cronkhite v. Belden, 193 Wis. 145, 211 N.W. 916, 214 N.W. 460, 57 A.L.R. 1218. Glenn v. Holub, D.C., 36 F.Supp. 941 (construing Iowa statute); Annotation: 155 A.L.R. 1279, Short form order signed. ...