Hueston v. Preferred Acc. Ins. Co.
| Decision Date | 24 June 1918 |
| Docket Number | No. 31901.,31901. |
| Citation | 184 Iowa 408,168 N.W. 150 |
| Parties | HUESTON v. PREFERRED ACC. INS. CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Lee County; W. S. Hamilton, Judge.
Suit on a policy of insurance. A demurrer that suit is prematurely brought was sustained. So was an amendment to the demurrer asserting that the suit is brought too late. Plaintiff appeals. Reversed and remanded.B. F. Jones and B. A. Dolan, both of Keokuk, for appellant.
F. T. Hughes, of Keokuk, for appellee.
I. The original petition was filed on the 14th of April, 1915. On April 16, 1915, plaintiff served original notice on an alleged agent of the defendant. The trial court held on demurrer that plaintiff had brought his action prematurely. If the filing of the petition on April 14, 1915, or the service of notice two days later, or both, began suit as early as April 16, 1915, then the suit was premature.
The defendant entered a special appearance on May 10, 1915, and therein challenged the jurisdiction of the court on the ground that the person who had been served with original notice sustained no relation to the defendant which would make a service upon him a service upon the defendant. While this motion was pending undetermined, and on the 28th of September, 1915, the plaintiff made an effective service of notice. If the service of this last notice was the beginning of action, then the trial court erred in holding that action was prematurely brought.
It has been held that for some purposes action is begun when petition is filed. Hagan v. Burch, 8 Iowa, 309; Sweatt v. Faville, 23 Iowa, 329, approved in Smith v. Callanan, 103 Iowa, 223, 72 N. W. 513, 42 L. R. A. 482. In the first this was declared in determining that there was the right to have an attachment issue after petition was filed, but before original notice was served. In the Sweatt Case an injunction suit was held to have been begun when writ of injunction was served, and the holding was, among other things, put on the ground that there is no statute provision regulating the writ of injunction which requires an original notice to be served before the writ may be allowed. But our decisions have made it clear that these two cases deal with exceptions instead of the rule. It was declared in Reed v. Barrows, 9 Iowa, 180, the rule in the Hargan Case notwithstanding, that, “strictly,” a suit is commenced by the delivery of notice to the sheriff or by actual service thereof by a person other than the sheriff. In Fritz v. Fritz, 93 Iowa, 29, 61 N. W. 169, it is expressly ruled that the said earlier cases state an exception and must be limited to the reccords presented therein. In Lesure v. Insurance Co., 101 Iowa, 518, 70 N. W. 761 et seq., these earlier cases are all considered, and so distinguished as that, notwithstanding them, it is the settled law that neither the filing of a petition nor the service of notice upon one whose being served is no notice to the defendant is the beginning of a suit for the purpose of a plea in abatement urging that suit was prematurely brought, and that there is no beginning of suit for the purpose of such plea until binding service is made or the defendant appears to the petition. It is further held that, if appearance be not made until a time when bringing suit would not be premature, the action is, for the purpose of the plea of abatement, begun when this appearance is made.
[1][2] The question, then, is whether the filing of a petition by this plaintiff and serving a notice which was no notice to the defendant began action. We have seen that the Lesure Case holds that neither of these acts instituted suit. For the purposes of this case commencement of action dates from the actual service of an effective notice. Proska v. McCormick, 56 Iowa, 318, 9 N. W. 289;Parkyn v. Travis, 50 Iowa, 436. We have held that, where a first notice is ineffective and a second notice is effectively served, the last notice institutes the first action pending. Littlejohn v. Bulles, 136 Iowa, 150, 113 N. W. 756. To the same effect is Keller v. Harrison, 139 Iowa, 383, 116 N. W. 327. One reason why we now hold it was error to sustain the demurrer alleging prematurity is that the first binding notice was served on September 28, 1915; that therefore the action was then begun, and, being then begun, was not premature. A second reason for this holding is this: At one stage in our statute law the special appearance of this defendant to object to the sufficiency of the notice served would confer jurisdiction over the person of defendant. Lesure v. Ins. Co., 101 Iowa, 520, 70 N. W. 761;Moffitt v. Co., 107 Iowa, 411, 78 N. W. 45;Locke v. Co., 107 Iowa, 394, 78 N. W. 49;Hamilton v. Hamilton, 129 Iowa, 628, 106 N. W. 5. But this is no longer so. Consequently the special appearance was a deliberate declaration by the defendant that no notice whatever had been served up to May 10, 1915, when the special appearance was made--a position which was maintained until the special appearance was withdrawn on September 22, 1916, at which time it was too late to bring a new action. It has been held time and again that, where the defendant induces the bringing of action too soon or too late, there is an estoppel to urge either prematurity or bar by time. There could have been no plainer inducement to act upon the assumption that suit was not prematurely brought than a solemn declaration by the defendant in open court that no suit at all had been brought. And so long as the defendant maintained that position it could not be heard to say that suit was prematurely brought. It maintained that position until the bringing of a new suit would not be premature, and, for that matter, until it would have been too late had plaintiff continued to act upon the declaration of the defendant. We do not overlook that defendant now urges that the first notice was effective and binding. But even if its original assertion to the contrary had caused the plaintiff no injury it is elementary that defendant could not now recede from the position it deliberately took first. Kearney v. Railway, 97 Iowa, 724, 66 N. W. 1059, 59 Am. St. Rep. 434;Midland Co. v. American Co., 166 N. W. 573;Sloanaker v. Howerton, 166 N. W. 78;Touhey v. Cooney, 166 N. W. 684;Van Winkle v. Crowell, 146 U. S. 42, 13 Sup. Ct. 18, 36 L. Ed. 880;Lehman v. Van Winkle, 92 Ala. 443, 8 South. 870; Bulkley v. Morgan, 46 Conn. 393; Bigelow, Estoppel, 673; Nield v. Burton, 49 Mich. 53, 12 N. W. 906;Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216, 18 Am. St. Rep. 803; 2 Herman, Estoppel, 1045, 1051; Mollring v. Mollring, 167 N. W. 524, decided at the last sitting.
It must be confessed we have decisions that mere failure to object to prematurity until a time has been reached when bringing suit would not be premature does not waive prematurity. But we need not enter upon any discussion of these decisions, because here was more than mere failure to object. There was a positive declaration by the defendant that no suit had been instituted, which position was adhered to until it was too late to bring suit. We plant our decision at this point upon holding: (1) That no original notice was served or appearance made until on and after September 28, 1915; that suit was begun on September 28, 1915, and was, therefore, not premature; (2) that defendant by taking the position that the notice served on April 16, 1915, was no notice, and maintaining that position until after a second notice had been served, is now in no position to urge that suit was brought by the serving of the notice on April 16, 1915, and that therefore the suit was prematurely brought. It follows it was error to sustain that part of demurrer which asserted that the suit was prematurely brought.
[3] II. On July 8, 1916, the plaintiff filed a substituted petition. If, as appellee contends, this petition presented a new and distinct cause of action, the trial court was right in sustaining a demurrer to this substitute on the ground that the cause of action alleged in the substitute was barred both by contract and statute limitations. The questionat this point is whether the substitute did present a new cause of action. The original petition sought to excuse the failure to perform certain conditions precedent by alleging a waiver. The prayer in both petitions is the same. Both declare on the same contract and upon the same injury. The substituted petition makes no change, in effect, except that it abandons said claim of waiver and substitutes for it the general allegations sanctioned by statute that plaintiff has performed and complied with all the terms and conditions of the policy to enable him to recover thereon. It is this change which the trial court held to work the creation of a new cause of action, or, as it is sometimes put, a new right of action.
We think in this the court erred. There is some hairsplitting in the cases on what is the subject of the action, a right of action, and a cause of action. It is possible to gather from some of the cases that, though one sues for a debt, and at no step of the litigation for anything but the same debt, an amendment which seeks a new remedy or alleges some fact which gives the right to sue for the debt does not relate back, and is in such sense a change of front as that the amendment may be held barred by limitations. In some cases it is loosely said that a cause of action involves every fact...
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