In re Sioux City Stock Yards Co.

• Decision Date: 19 June 1936
• Docket Number: 43498.
• Citation: 268 N.W. 18,222 Iowa 323
• Parties: In re SIOUX CITY STOCK YARDS CO.
• Court: Iowa Supreme Court

268 N.W. 18

222 Iowa 323

In re SIOUX CITY STOCK YARDS CO.

No. 43498.

Supreme Court of Iowa.

June 19, 1936

Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.

Action on appeal by the Board of Supervisors of Woodbury County from an order of the Board of Review of Sioux City involving an assessment of the property of the Sioux City Stock Yards Company. The Stock Yards Company entered a special appearance objecting to the jurisdiction of the court. From an order overruling the special appearance, defendants appeal.

Affirmed.

Milchrist, Schmidt & Marshall, and H. C. Harper, all of Sioux City, for appellant.

A. W Johnson, of Sioux City, Wright & Baldwin, George S. Wright Addison G. Kistle, and Paul E. Roadifer, all of Council Bluffs, for appellees.

KINTZINGER, Justice.

On June 19, 1935, Woodbury county, acting through its board of supervisors, filed a notice of appeal from the action of the local board of review in failing to assess the property and shares of stock of the Sioux City Stock Yards Company.

The board of review finally adjourned on May 31, 1935. Under section 7133 of the Code of 1935, the time for appealing from the action of the board expired on June 20, 1935. W. D. Hayes was at that time mayor of the city of Sioux City and chairman or presiding officer of the local board of review of Sioux City for the year 1935. Under section 7133, such appeal must be " taken by a written notice to that effect to the chairman or presiding officer of the reviewing board, and served as an original notice ."

The record in this case shows without conflict that the only service made upon W. D. Hayes, who was then mayor of Sioux City and chairman of the local board of review, was a service made on June 17 and June 18, 1935, upon a sister-in-law of said W. D. Hayes and upon his daughter, both of whom at that time were over 14 years of age and resided with him at his usual place of residence in the city of Sioux City. The record also shows without conflict that at the time said alleged service was made W. D. Hayes was not present in Woodbury county, Iowa.

The chief question presented in this case, therefore, is whether or not the service made in the manner above set out was sufficient to give the court jurisdiction. The lower court held the service good and sustained the jurisdiction. From this ruling, the Sioux City Stock Yards Company appeals. Appellee also contends that the ruling of the lower court is not an appealable order. We will briefly consider the latter question first.

I.

The rule announced in Dorman v. Credit Ref. & Rep. Co., 213 Iowa 1016, 241 N.W. 436, 438, and many cases referred to therein, is that an appeal directly from the ruling of the lower court without an entry of a final judgment is permissible, where the order appealed from affects the substantial rights of appellant, " or materially affects the final decision." A defense on the merits of the case would require a general appearance. This is not required under the statute relating to a special appearance (Code 1935, § 11088). In appealing from an adverse ruling on the issues raised on a special appearance, it is not necessary for appellant to stand upon the special appearance or suffer judgment to be entered against him. Irwin v. Keokuk Savings Bank & Trust Co., 218 Iowa 470, 254 N.W. 806, 807.

In that case this court said: " If the minor desired to appeal to this court from the adverse ruling of the district court on her special appearance, she, of course, could not appear generally and plead to the merits of the case. State v. Knapp, 178 Iowa 25, 158 N.W. 515; Crouch v. National Livestock Remedy Company, 205 Iowa 51, 217 N.W. 557; Scott v. Price Bros. Company, 207 Iowa 191, 217 N.W. 75."

This question was definitely decided in the case of Irwin v. Keokuk Sav. Bank & Trust Co., supra, and is controlling upon the question raised upon that point here. It necessarily follows that the ruling on a special appearance is an appealable order.

II.

Appellant contends that the court erred in refusing to sustain the special appearance entered by the defendant, Sioux City Stock Yards Company, on their claim that no valid notice of appeal had ever been perfected as provided by section 7133.

Section 7133 of the Code of 1935 provides that: " Appeals may be taken from the action of the board * * * to the district court, * * * within twenty days after its adjournment. Appeals shall be taken by a written notice to that effect to the chairman or presiding officer of the reviewing board, and served as an original notice."

This statute provides for an appeal from the action of the board of review by giving written notice of the appeal " to the chairman or presiding officer of the reviewing board." The statute also provides that the notice of appeal shall be " served as an original notice." Three methods of serving original notices are prescribed in section 11060 of the Code of 1935, as follows:

" 11060. Method of Service . The notice shall be served as follows:

1. By reading it to the defendant or offering to do so in case he neglects or refuses to hear it read. * * *

2. If not found within the county of his residence, or if, because of his sickness or other disability, personal service cannot be made upon him, by leaving a copy thereof at his usual place of residence with some member of his family over fourteen years of age. * * *

3. By taking an acknowledgment of the service indorsed thereon, dated and signed by the defendant."

Appellant contends that the notice of appeal can only be perfected by serving it personally upon W. D. Hayes, chairman of the board of review, and not under the method of serving original notices as prescribed in paragraph 2 of section 11060 of the Code.

The first and third methods pointed out in the foregoing statute could not be followed, because the defendant was not within the county of his residence on the date the alleged service was made. Appellant contends that the provision for substituted service prescribed in paragraph 2 of section 11060 refers only to cases where the party is to be served is the defendant, and that such substituted service is permissible only where the defendant is sued individually.

Appellee contends that, under paragraph 2 of the foregoing section, the service made in this case was authorized, because the defendant could not be found within the county of his residence at the time of such service.

In support of their contention, appellants rely chiefly upon the case of Brydolf v. Wolf, Carpenter & Co., 32 Iowa 509. In that case the question presented was whether the service of the original notice upon the wife of one of the members of a partnership was good service upon the partnership.

This court, in that case, said, 32 Iowa 509, loc.cit. 510: " In an action against a partnership, the statute provides, that ‘ service may be made upon any member of the firm or upon any agent employed in the general management of the business of the partnership.’ Rev. § 2826. A service upon one partner is good service on the partnership, and gives the court jurisdiction over each member, in an action against the firm. * * * The position of appellant is, that inasmuch as service may be made upon any member of the partnership, under section 2826, if such member cannot be found in the county of his residence, service may be made on him by leaving a copy with a member of his family under section 2816. This position does not seem to us to be tenable. Section 2815 provides the mode of service where the defendant is sued individually; service must be made upon him, personally, if found within the county of his residence. If not thus found, service may be made by leaving a copy of the notice at his usual place of residence with some member of his family over fourteen years of age. This is the only * * * statute especially authorizing such secondary * * * service on a member of the defendant's family. Service on a partnership is authorized to be made upon any member of the firm, or upon a general agent of the firm. Each member of a partnership is the general agent of the firm during the continuance of the partnership, and, in view of this, the statute provides that service upon any one of them shall be good as to the firm, or that service upon one not a member of the firm, who is an agent employed in the general management of the business of the partnership, is good also. The wife of a partner is in no sense an agent of the partnership, nor is she her husband's agent in respect to the partnership business, and the statute makes no provision for service upon any person where a partnership is sued as such, except a member of the partnership or an agent thereof. * * * We therefore hold that the statute, in providing that ‘ when the action is against a partnership, service may be made upon any member thereof, or upon any agent employed in the general management of their business,’ contemplated a personal service upon the persons named, no other persons or mode being mentioned, and that the service of the original notice in this case upon the wife of one of the partners was insufficient." (Italics ours).

It is true that paragraph 2 of section 11060 does contemplate an action where a defendant is sued individually. Therefore, if there was no provision in section 7133 as to the method of service of the notice of appeal upon the chairman of the board of review, we would be controlled by the rule...