Kraft v. Bahr

• Decision Date: 05 May 1964
• Docket Number: No. 51286,51286
• Citation: 256 Iowa 822,128 N.W.2d 261
• Parties: Leone KRAFT, Administratrix of the Estate of Oren R. Kraft, Substituted Appellant, v. Edwin BAHR, sometimes known as Edw. Bahr, Ed Bahr, and as Edward Bahr, Appellee.
• Court: Iowa Supreme Court

Page 261

128 N.W.2d 261

256 Iowa 822

Leone KRAFT, Administratrix of the Estate of Oren R. Kraft, Substituted Appellant, v. Edwin BAHR, sometimes known as Edw. Bahr, Ed Bahr, and as Edward Bahr, Appellee.

No. 51286.

Supreme Court of Iowa.

May 5, 1964.

Rehearing Denied July 15, 1964.

Don Boddicker, Vinton, and John D. Randall, Sr., Cedar Rapids, for appellant.

Shuttleworth & Ingersoll, Cedar Rapids, for appellee.

Fisher & Pickens, Cedar Rapids, for United Fire & Casualty Co., intervenor.

Shuttleworth & Ingersoll, Cedar Rapids, for Indemnity Ins. Co. of North America, defendant on cross-petition.

LARSON, Justice.

The issue presented is whether timely jurisdiction was acquired over a nonresident defendant in an action to recover for personal injuries as a result of a motor vehicle accident. The trial court held 'that plaintiff's claim based upon personal injury is, as a matter of law, barred by the operation of Section 614.1(3), Code of Iowa [I.C.A.]' (Statute of Limitations) Substituted plaintiff Leone Kraft, Administratrix of the Estate of Oren R. Kraft, deceased, by leave of court, appealed. We reverse.

The essential facts are these. Plaintiff's cause of action accrued November 9, 1954. On November 7, 1956, he filed in the Benton County District Court a petition against Edwin Bahr claiming personal injury and property damages. On November 8, 1956, an original notice of the action was filed with the Commissioner of Public Safety of the State of Iowa which named defendant as Edwin Bahr. Notification of said filing was sent to Edwin Bahr at the address he gave the investigating officer at the time of the accident, by restricted registered mail on November 9, 1956. After mailing it was discovered that defendant's actual name was Edward Bahr, and on November 9, 1956, plaintiff's attorney attempted to correct the misnomer by amending the petition and by filing an additional original notice directed to Edwin Bahr, otherwise known as Edw. Bahr, Ed Bahr, and Edward Bahr. Notification to defendant of the second filing, however, was not mailed until November 17, 1956, obviously over two years after the accident. Defendant received the first notification and signed the receipt card 'Edward Bahr' on November 29, 1956. The second was received and receipted for on December 1, 1956. No issue is made as to the form of the notice or of its manner of mailing. Thus we have here a 'notification' addressed to Edwin Bahr at 205 Hebard Street, Knoxville, Illinois, and received by the proper party, Edward Bahr, at Houston, Texas, which plaintiff contends constituted due and timely process under the Iowa statutes pertaining to actions against nonresidents. Sections 321.498 to 321.505 inclusive, Code of Iowa, 1958 and 1962, I.C.A.

Section 321.500 provides that the original notice of suit filed with the commissioner shall be in form and substance the same as provided in suits against residents, except sixty days for appearance is provided after the date of filing with the commissioner. See Rule 50, Rules of Civil Procedure, 58 I.C.A.

Section 321.501 provides the manner of service, (1) by filing a copy of the original notice with the commissioner, together with a two dollar fee; (2) 'By mailing to the defendant, * * * within ten days after said filing with the commissioner, by restricted certified mail addressed to the defendant at his last known residence or place of abode, a notification of the said filing * * *.' (Emphasis supplied.)

Section 321.502 provides the form of the notification to nonresidents in substantially the following form: 'To (Here insert the name of each defendant and his residence or last known place of abode as definitely as known.) You will take notice that an original notice of suit against you, a copy of which is hereto attached, was duly served upon you at Des Moines, Iowa, by filing a copy of said notice on the ___ day of _____, 19__, with the commissioner * * *.'

Section 321.504 provides, in lieu of the mailing of notification to defendant in a foreign state, that plaintiff may have the notice served personally. Although section 321.511 refers to service under this authorization as substituted service, under our holding it is, in fact, more closely akin to personal service. See Emery Transportation Co. v. Baker, 254 Iowa 744, 751, 119 N.W.2d 272.

Section 321.505 provides for proof of service, which was filed herein on November 19, 1959, and duly amended to show both postal receipts January 21, 1957.

I. At the outset we must determine whether the notification required by section 321.502 was satisfied when addressed to Edwin Bahr rather than Edward Bahr, defendant's correct name. It is true we have said this method of obtaining jurisdiction over nonresidents is an extraordinary method of procedure, and to take advantage of it, one must strictly follow the procedure outlined in the statute. Esterdahl v. Wilson, 252 Iowa 1199, 1204, 110 N.W.2d 241; Johnson v. Brooks, 254 Iowa 278, 282, 117 N.W.2d 457. However, by that announcement we did not mean to infer that misnomers or minor irregularities in notifications, which would not in like circumstances void personal service of an original notice, would be sufficient to defeat process in this manner. We hold to the contrary. Ransom v. Sipple Truck Lines, 240 Iowa 466, 470, 34 N.W.2d 590. In this connection, obviously a stricter rule as to correct designations is called for in published notices, or in substituted service than in personal service where the true defendant may not be aware that the notice is directed to him. But substituted service under our nonresident statutes is not provided. The notification must be delivered to the addressee himself. Esterdahl v. Wilson, supra. While we think an argument may be made that greater variations should be permitted in the Christian names or initials in nonresident notifications than those in petitions and original notices generally, we will consider them alike for the purposes of this discussion. No cases were cited us, nor have we been able to find any that specially deal with variations in defendant's name in such notifications. Some cases where notices of actions were not personally served, involving fatal variations in notices, are: Thornily v. Prentice, 121 Iowa 89, 93, 96 N.W. 728; Schaller & Son v. Marker, 136 Iowa 575, 576, 114 N.W. 43; Pilkington v. Potwin, 163 Iowa 86, 144 N.W. 39. All are early substituted service cases not exactly in point. In the recent case of Shields v. Heinold, 253 Iowa 898, 901, 114 N.W.2d 302, 303, cited by both parties, we said: 'Where the real defendant is identifiable from the record before the court, or where it appears that the real defendant has actually been personally served, some variation in the name or error in an initial is not fatal.' In Kriv v. Northwestern Securities Co., 237 Iowa 1189, 1199, 24 N.W.2d 751, we pointed out that where reliance is placed on notice by publication which may never come to the attention of the party to be charged, the quality of the notice is measured with greater strictness than where the notice is personally served. There is sound logic and reasoning in such a rule, for if the true defendant is so notified, and knows from observing the contents of the notice that he is the person referred to, there is no detriment to him caused by the misnomer. To hold a minor variation in defendant's Christian name when he was personally served and knows he is the party referred to is a fatal defect, would be to allow an ultratechnical defect, one that in no way misleads defendant or deprives him of a substantial right, which in turn would defeat the ends of justice and circumvent the purpose of our Rules of Civil Procedure, i. e., to obtain a speedy determination of litigation upon merits. Jacobson v. Leap, 249 Iowa 1036, 1041, 88 N.W.2d 919. While both Rule 50, R.C.P., and sections 321.500 to 321.504 require the notices to be directed to the defendant, there seems to be no statutory requirement as to how he is to be designated. If it is obvious the party served is the one involved, how could he be injured or misled to his detriment?

In 42 Am.Jur., Process, § 97, p. 84, it is stated: 'Some courts hold that the service is good if the case can be brought within the idem sonans doctrine, and others test the sufficiency of the service by the substantial similarity of appearance of the true name of the defendant and the name as printed in the * * * notice', and in 38 Am.Jur., Name, § 36, p. 613, it is stated: 'There are many cases where it is held, notwithstanding the doctrine of idem sonans does not strictly apply, that the doctrine of interchangeability of names applies, * * *.' In personal service case we find merit in that conclusion.

In Jacobson v. Leap, supra, 249 Iowa 1036, 1040, 88 N.W.2d 919, 922, we discussed the requirements of Rule 50 and held a failure to strictly or literally comply with its provisions was not necessarily fatal, and concluded that 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.' (Citing cases)

On the other hand, in Summerlott v. Goodyear Tire & Rubber Co., 253 Iowa 121, 111 N.W.2d 251, 93 A.L.R.2d 371, we called attention to Rule 48, R.C.P., and cautioned that substantial defects in a notice would defeat plaintiff's cause of action. However, in neither of these two cases was the defect in naming defendant. They related to the place he was to appear, which would seem much more liable to confuse or mislead a defendant.

While it is often said the test as to idem sonans is when the attentive ear finds difficulty in distinguishing names when pronounced, we think each case must be considered in relation to the situation involved. Thus as Ed is recognized as an abbreviation of both Edwin and Edward, one might reasonably be expected to answer to either name. This is especially true when coupled with...