Jacobson v. Leap

• Decision Date: 11 March 1958
• Docket Number: No. 49380,49380
• Citation: 249 Iowa 1036,88 N.W.2d 919
• Parties: Amos JACOBSON, Plaintiff-Appellee, v. P. I. LEAP, Illinois Motor Freight, Inc. and Harris Truck Line, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 919

88 N.W.2d 919

249 Iowa 1036

Amos JACOBSON, Plaintiff-Appellee, v. P. I. LEAP, Illinois Motor Freight, Inc. and Harris Truck Line, Defendants-Appellants.

No. 49380.

Supreme Court of Iowa.

March 11, 1958.

Rehearing Denied May 9, 1958.

Livingston & Day, Everett Meeker, Washington, for appellants.

Rider, Bastian & Beisser, Fort Dodge, A. E. Baldrige, Washington, for appellees.

HAYS, Justice.

In an action wherein plaintiff asked damages from defendants due to a collision between two motor vehicles, a default judgment was entered against each defendant in July, 1956. Defendant Leap, a resident of Iowa, was served with notice as authorized by Rule 56(a), 58 I.C.A. The other defendants, both foreign corporations, were served with notice as provided by Section 321.501, Code 1954, I.C.A.

In March, 1957, defendant Leap filed, under Rules 252 and 253, a petition, in two divisions, to vacate the judgment and for a retrial. Answer to plaintiff's petition was attached thereto together with an affidavit. In January, 1957, the corporate defendants moved for a retrial under Rule 251. Answers were attached. No ruling thereon appears in the record. In April, 1957, the corporate defendants filed petitions to vacate the judgments, alleging lack of jurisdiction in the trial court. These petitions appear to have been filed under Rules 252 and 253. Motions to dismiss the three petitions to vacate were, after a hearing, sustained and each defendant appeals.

I. As to the corporate defendants, Illinois Motor Freight, Inc., and Harris Truck Lines, the factual situations giving rise to the legal propositions here involved are identical and we will consider them as one. The legal proposition is that the notice served in the original action was fatally defective and the judgment entered is void for lack of jurisdiction.

While Rules 252 and 253 are not applicable where the judgment is void, Gaar, Scott & Co. v. Taylor, 128 Iowa 636, 105 N.W. 125; Martin Bros. Box Co. v. Fritz, 228 Iowa 482, 292 N.W. 143; Kirby v. Holman, 238 Iowa 355, 25 N.W.2d 644, petitions filed thereunder, based upon a jurisdictional question, may be considered as motions, in the absence of objections to the procedure adopted. Hunter v. Porter, 124 Iowa 351, 100 N.W. 53; Williamson v. Williamson, 179 Iowa 489, 161 N.W. 482; Miller v. Miller, 242 Iowa 706, 46 N.W.2d 732. Apparently all parties and the trial court considered them as motions and we shall do likewise.

II. The factual situation concerns the original notice that was served and is not in dispute. The notice was as follows:

'In the District Court of Washington County, Iowa

'To above named defendants, (naming them):

'* * * there is now on file in the office of the Clerk of the district court of Webster County, Iowa, the petition * * * asking judgment in the sum of $4844.83

* * *

* * *

'Said petition alleges that on or about April 2, 1955, a motor vehicle owned by P. I. Leap, leased to Illinois Motor Freight, Inc. and Harris Truck Line was being operated by Don Reeves and was so carelessly and negligently operated as to bring it into collision with a vehicle owned by * * * plaintiff * * *.

'* * * For further particulars see petition * * *.

'And unless you appear * * * in the district court * * * for Washington County, at the Courthouse in Washington, Iowa, * * * your default will be entered' (Italics added).

It is appellants' contention that the notice in stating the petition is now on file in Webster County when in fact the case was pending in Washington County, is fatally defective and confers no jurisdiction.

III. Little assistance upon this question is found in appellee's brief and argument. It is his position that, conceding the notice to be fatally defective, the appellants by attaching answers to their motion and petitions, have in effect appeared generally and thereby have conferred jurisdiction. Such a position is untenable. A void judgment is not validated by anything filed thereafter in an attempt to vacate it. Beck v. Vaughn, 134 Iowa 311, 111 N.W. 994; Korsrud v. Korsrud, 242 Iowa 178, 45 N.W.2d 484.

IV. It must be conceded that the above notice fails to comply with Rule 50 and is defective. Is it fatally defective? We hold not.

Rule 50, entitled 'Contents of original notice,' supersedes Section 11055, Code 1939, but is virtually a rewrite thereof. An original notice is the formal writing, issued by authority of law, for the purpose of bringing defendants into court to answer plaintiff's demands in a civil action. The requisites thereof are largely statutory, Rule 50 in this state. Where a defendant has failed to respond to an original notice the jurisdiction of the Court over his person must be based upon a compliance of that notice with our Rule governing the same.

Under our earlier decisions a strict, in fact a literal, compliance with the statute was required. A departure therefrom was fatal. By more recent decisions we have adopted a rule of liberal construction to avoid defeating action because of technical and formal defects which could not reasonably have misled defendant. Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919; Krueger v. Lynch, 242 Iowa 772, 48 N.W.2d 266. See also, Tharp v. Tharp, 228 Minn. 23, 36 N.W.2d 1.

Rule 50, so far as material here, provides 'it shall state that the petition is on file in the office of the clerk of the court where the action is brought. It shall notify defendant to appear before said court.' Had the instant notice, after stating that the petition was on file in Webster County, merely required appearance in said County, the situation would be somewhat similar to that found in Rhodes v. Oxley, supra, and we could readily go along with appellants' contention that the notice was fatally defective. However, such is not the case. An examination of the notice herein set forth, shows that after stating the petition was on file in Webster County, it so clearly and concisely spells out just what defendant must do as to leave no reasonable basis for inference, conjecture or doubt and clearly brands the words 'Webster County' as a mistake. It distinctly says defendant must appear in the district court of Washington County at the Courthouse in Washington, Iowa. To hold this notice fatally defective would be to allow an ultratechnical defect, a defect that in no way misleads defendant or deprives him of a substantial right, to defeat the ends of justice and circumvent a basic reason for our Rules of Civil Procedure, i. e., a speedy determination of litigation.

V. The other proposition presented which we feel warrants comment, pertains to the sufficiency of Division II of appellant Leap's petition, as the basis for a new trial. We are conceding to him a sufficient excuse for not acting under Rule 236.

Appellant in effect seeks to come under Rule 252(e) by showing such unavoidable casualty and misfortune as to have prevented him from defending. By an affidavit attached thereto, such casualty and misfortune is based upon the following facts: He owns the motor vehicle involved in the collision. At the time in question it was leased to Harris Truck Line which, by the lease, agreed to be responsible for any damage to third persons due to operation of the truck. After being served with notice in the original action, he notified the attorney and business manager of Harris Truck Line in Chicago, Illinois, and asked him to arrange to make a defense thereto. Upon being advised that arrangements would be made, he gave it no further attention until he learned of the default and judgment.

Proceedings under Rules 252 and 253 are ordinary actions triable to the Court and are at law. Shaw v. Addison, 236 Iowa 720, 18 N.W.2d 796, and the Court in granting or denying a new trial thereunder exercises a judicial discretion which will be disturbed upon appeal only upon a clear showing of an abuse thereof. Hueston v. Preferred Accident Ins. Co., 161 Iowa 521, 143 N.W. 566; Kirby v. Holman, 238 Iowa 355, 25 N.W.2d 644; Hoovler v. Wolfe, 245 Iowa 1302, 66 N.W.2d 486. While no findings of fact by the court appear in the record, the dismissal of the petition warrants but one conclusion which is that such casualty and misfortune has not been established.

Appellant bases his right to a retrial entirely upon his contractual relationship with Harris Truck Line. The terms and conditions of this relationship do not appear. Was it the Truck Line's duty to defend? Was it to be responsible only under certain conditions? It is clear that no attorney-client relationship ever existed and that at best, the attorney and business manager was merely appellant's agent to arrange a defense. Under the instant facts negligence in failing to arrange a defense is to be imputed to the principal. 49 C.J.S. Judgments § 334(b); Brainard v. Coeur d'Alene Antimony Mining Co., 35 Idaho 742, 208 P. 855; Hedrick v. Smith & Reed, 137 Iowa 625, 115 N.W. 226; Scott v. Union Mutual Cas. Co., 217 Iowa 390, 252 N.W. 85; Chmielewski v. Marich, 2 Ill.2d 568, 119 N.E.2d 247, 42 A.L.R.2d 1023; Annotation, 16 A.L.R.2d 1147.

Rule 253 requires that a petition filed thereunder shall allege a meritorious defense which shall be supported by affidavit as provided by Rule 80(b).

Attached to Division II of Appellant Leap's petition is an answer which is merely a general denial. In the affidavit, above referred to, he alleges that based upon his conversation with the drivers involved in the collision and an investigation made by him it is his conclusion that the sole proximate cause of the collision was the negligence of the driver of plaintiff's car.

Under the entire record we do not find such a clear showing of casualty or misfortune preventing a defense and of a meritorious defense in the original action as would warrant a holding of an abuse of discretion by the trial Court.

Finding no error the judgment of the trial Court is affirmed.

Affirmed.

PETERSON, C. J., and WENNERSTRUM, HAYS, THOMPSON and ...