Goodman v. Henry L. Doherty & Co.

• Decision Date: 23 June 1934
• Docket Number: No. 42214.,42214.
• Citation: 255 N.W. 667,218 Iowa 529
• Court: Iowa Supreme Court
• Parties: GOODMAN v. HENRY L. DOHERTY & CO.

218 Iowa 529

255 N.W. 667

GOODMAN

v.HENRY L. DOHERTY & CO.

No. 42214.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Polk County; A. A. Herrick, Judge.

This action was brought by Goodman against the defendant, Henry L. Doherty & Company, for damages. The action is predicated upon an illegal sale of securities made to the plaintiff by the duly authorized agent of Doherty. Service of original notice was made under the provisions of section 11079 of the Code, upon the defendant's agent, who made the illegal sale. The defendant entered only a special appearance to challenge the jurisdiction of the court. As ground of his challenge he averred that he was a citizen and resident of the state of New York and that he had never at any time been within the borders of the state of Iowa. He also averred that he operated a business in Iowa under the trade-name of Henry L. Doherty & Co., and that he was the sole owner of such business; that the service of original notice upon his agent was at no time authorized by him, and that such service was null and void as to him.

The district court overruled the special plea and held that the service upon the agent was good as against the defendant. No further appearance was made by the defendant, and the court entered judgment against him as prayed in the petition. From such judgment he has appealed.

Affirmed.

MITCHELL and KINDIG, JJ., dissenting.

Deacon, Sargent, Spangler & Hutchison, of Cedar Rapids, and Lehmann, Hurlburt & Hossfeld, of Des Moines, for appellant.

Brammer, Brody, Charlton & Parker, of Des Moines, for appellee.

EVANS, Justice.

[1][2] Respective counsel for the contending parties unite in the statement that the case of Davidson v. Henry L. Doherty & Co., 214 Iowa, 739, 241 N. W. 700, is determinative of the case at bar unless it be overruled herein. The cited case was an action by Davidson against the same defendant herein, and was predicated upon a cause of action identical in its issues with that herein. The arguments of counsel in both cases are substantially identical. The material facts were stipulated in each case. That the defendant was never personally within the state of Iowa is conceded by the plaintiff. It is likewise conceded that the defendant personally established his office in Iowa and caused his name to be placed upon the office door and caused all business to be transacted in his name and not otherwise. The question raised is whether it is legally possible by force of any statute of Iowa, for the courts of Iowa to acquire personal jurisdiction of a nonresident who is doing business within the state of Iowa, if such nonresident has never in fact brought his person within the borders of the state. The argument of appellant herein is the fair equivalent of a petition for rehearing in the Davidson Case. The legal questions now raised herein were all presented in the Davidson Case, and were very fully considered therein. Decision was attained by a divided court. The majority opinion necessarily prevailed. The reasons pro and con for the respective opinions are fully stated therein. That the questions thus considered are debatable and close may be readily conceded. They have been so regarded by the judiciary of the country for many years. The ultimate question has been often approached, but never quite decided. A citation of the Davidson Case as a precedent is an all-sufficient argument for the decision of this case. The only door of argument open to the appellant is to seek the overruling of the opinion in the Davidson Case. The fact that the decision was close and doubtful is urged by the appellant as a reason for its overruling. Such reason is not adequate. We were under the same duty of original decision whether the case were close and doubtful or otherwise. There are strong practical reasons why we should not be swift or willing to overrule a decision which has been arrived at after full consideration and without inadvertence or misunderstanding. As a precedent it has become a practical verity; and no less such because it is doubtful, or deemed so. It became at once a beacon to trial judges and a rule for the decision of other cases. To treat a question thus settled as still open is to convert the beacon into a will-o'-the-wisp and to destroy, quite, the force and effect of the law of precedent as a guide to the rights of litigants. And this is no less true even though the decision shall have been rendered by a divided court. Divided opinion in arriving at a decision is not uncommon or inappropriate. But after decision the court ceases to be divided thereon and becomes unanimously obedient to the precedent. If the judicial rule were otherwise it would subject all precedents to a rediscussion and reconsideration with every change in the personnel of the court. Such a course would be quite intolerable. Since the decision of the Davidson Case, there has been a substantial change of personnel in this court. If we were called upon to realign our membership in the reconsideration of previous cases supposedly doubtful, it would necessarily result in putting the stamp of uncertainty upon every precedent. If a majority of us were not disposed to overrule the Davidson Case, and should vote accordingly, we would, or might, still be a divided court and be still confronted with as many reasons for a later realignment to the contrary, as confront us now. Precedents are the stepping stones of the law in its goings. Once placed, they should not be lightly displaced. Such, broadly, is the reason why an appellate court consents to the overruling of a prior decision only in a very exceptional case. It will be soon enough to overrule this precedent, if and when superior authority so rules.

Obedient thereto, the judgment appealed from is accordingly affirmed.

Affirmed.

CLAUSSEN, C. J., and STEVENS, ALBERT, ANDERSON, KINTZINGER, and DONEGAN, JJ., concur.

MITCHELL, Justice (dissenting).

I was not a member of the court at the time the opinion in Davidson v. Henry L. Doherty & Co., reported in 214 Iowa, 739, 241 N. W. 700, was decided. Had I been, I would have joined in the dissenting opinion filed by the late Justice Morling.

I concur in the dissenting opinion of Justice KINDIG.

KINDIG, Justice (dissenting).

I am unable to agree with the result reached by the majority in this case, as I was unable to agree with the result reached by the majority in Davidson v. Henry L. Doherty & Co., 214 Iowa, 739, 241 N. W. 700.

It is the theory of the majority that the Davidson Case decides the present controversy, and that the rule of stare decisis precludes a dissent at this time. The rule of stare decisis would control were the controversy here one to be finally determined by this court; but a federal constitutional question is involved. Therefore, the judgment of this court is not final. A former decision of this court does not make a result constitutional...