Krebs v. Town of Manson

• Decision Date: 16 July 1964
• Docket Number: No. 51422,51422
• Citation: 129 N.W.2d 744,256 Iowa 957
• Parties: Martha KREBS, Appellant, v. TOWN OF MANSON and Iowa-Illinois Gas and Electric Company, Appellees.
• Court: Iowa Supreme Court

Page 744

129 N.W.2d 744

256 Iowa 957

Martha KREBS, Appellant, v.TOWN OF MANSON and Iowa-Illinois Gas and Electric Company, Appellees.

No. 51422.

Supreme Court of Iowa.

July 16, 1964.

McCarville & Bennett, Fort Dodge, for appellant.

Don N. Kersten and Alan Loth, Fort Dodge, for appellees.

STUART, Justice.

Plaintiff has appealed from a ruling of the trial court in which the special appearances of defendants were sustained on the ground that the original notice was fatally defective.

I.On November 4, 1961plaintiff fell on the walk in the Town of Manson and was injured.Timely statutory written notice was given to the city.On October 17, 1963 a petition was filed in two counts.Count I claimed damages from the city.Count II claimed damages from the company.

On the same date original notice was properly served upon each defendant which read in part:

'TO THE ABOVE-NAMED DEFENDANTS: YOU AND EACH OF YOU ARE HEREBY NOTIFIED, That there is now on file in the office of the clerk of the above-named court the petition of the Plaintiff herein praying for Judgment against you and each of you in Two Counts; In Count I of said petition the Plaintiff prays for Judgment against the defendant, Town of Manson, Iowa in the amount of $51,357.60 and for interest and the costs of this action.In Court II of said petition the Plaintiff prays for judgment against the defendant, Iowa-Illinois Gas & Electric Company in the amount of $51,357.60 and for interest and costs of this action.

'For further particulars see the petition now on file. * * *'

On November 6, 1963 both defendants filed special appearances alleging the notice was insufficient to confer jurisdiction because no copy of the petition was attached and it did not contain a general statement of the cause of action as required by R.C.P. 50, 58 I.C.A. which provides:

'50.CONTENTS OF ORIGINAL NOTICE.The original notice shall be directed to the defendant, and signed by plaintiff or his attorney with the signer's address.It shall name the plaintiff, the court, and the city or town, and county where the court convenes.It shall state either that the petition is on file in the office of the clerk of the court where the action is brought, or that it will be so filed by a stated date, which must not be more than ten days after service.It shall notify defendant to appear before said court within the specified number of days after service required by rule 53 or rule 54, and that unless he so appears, his default will be entered and judgment or decree rendered against him for the relief demanded in the petition.A copy of the petition may be attached; but if it is not or if the service is by publication, the notice shall contain a general statement of the cause or causes of action and the relief demanded, and, if for money, the amount thereof.'(Emphasis supplied)

The author's comments under Rule 50 in Cook's Iowa Rules of Civil Procedure are informative and pertinent.

'The requirements of this Rule--indeed of this whole Division--are jurisdictional.Perhaps nowhere (except in notics of appeal) is failure to comply fully and literally with a Rule so disastrous as under this Division.It deals with how the court gets jurisdiction.

'The courts cannot relax these Rules, because they have no jurisdiction to exercise any discretion, or do any act, until they acquire it in the manner here specified.The prior Iowa cases as to the fatal consequences of departing from this and the following Rules, are in full force.'

The Rules of Civil Procedure have the force and effect of statute.Halverson v. Hageman, 249 Iowa 1381, 1383, 92 N.W.2d 569.An original notice which does not contain the matter required by Rule 50 is tatally defective and does not confer jurisdiction over the party served with such defective notice.Halverson v. Hageman, supra;Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919;Parkhurst v. White, 254 Iowa 477, 118 N.W.2d 47;shields v. Heinold, 253 Iowa 898, 114 N.W.2d 302, 304;Summerlott v. Goodyear Tire & Rubber Co., 253 Iowa 121, 111 N.W.2d 251, 93 A.L.R.2d 371;Farley v. Carter, 222 Iowa 92, 269 N.W. 34.Recent cases, Krueger v. Lynch, 242 Iowa 772, 48 N.W.2d 266;Jacobson v. Leap, 249 Iowa 1036, 1041, 88 N.W.2d 919;State ex rel. Hanrahan v. Miller, 250 Iowa 1358, 1367, 96 N.W.2d 474; have relaxed the standards of literal compliance with the statutory requirements, but have not altered the basic rule.We have drawn a distinction between irregularities in a notice which are not fatally defective if no prejudice to defendant is shown, and defects which do not substantially comply with the statute and are jurisdictional.These differences are discussed and clearly explained in Parkhurst v. White, supra, 254 Iowa 477, 480, 118 N.W.2d 47, 49.

The notice here did not contain a statement of the cause of action and was fatally defective.The rule of liberal construction of irregularities did not apply.An 1851statute required an original notice to state briefly 'the substance of the remedy sought'.In Moody v. Taylor, 12 Iowa 71we held this '* * * necessarily implies the nature or subject of the action, as whether it is founded upon a note an open account, for trespass, for slander, or recovery of real estate, etc.The above notice simply states the amount of the plaintiff's claim, without intimating its origin whether it arose out of a contract or a tort, and in this is fails to meet the requirements of the code.'p. 72.This is quite similar to the statement in the notice here.

In Farley v. Carter, 222 Iowa 92, 96, 269 N.W. 34, we discussed the sufficiency of the general statement of a cause of action in an original notice which read: '* * * claiming of you the sum of $1214.68 and interest at 6% * * * from October 24, 1930, payable to this plaintiff in the foregoing sum and the debt represented thereby.For further particulars, see petition when filed'.We said:

'In effect, it is simply a statement that the claim belongs to the plaintiff, and is only a claim for the amount sued on.It fails to state the nature of the cause of action, as to whether it is founded upon a note, an open account, for trespass, or whether it arose out of a contract or a tort, without intimating its origin, and therefore fails to meet the requisites of the statute.

'The notice contains no statement whatever 'in general terms of the cause of action' sued on.As a statement of this character is required by section 11055, the notice must be held to be fatally defective, unless it is saved by the following statement in the notice: 'For further particulars, see petition when filed.'It must be observed that the petition is not made a part of the original notice by reference, even if it could be.The notice simply states 'For further particulars, see petition when filed.''

The case then holds that particular statement does not aid the notice in meeting the requirements of the statute.The notice here contains a similar statement, but plaintiff does not claim it adds anything to the notice as written.

While plaintiff contends 'the information concerning the prayer for judgment against each specific defendant including the amount of money prayed for is sufficient to constitute a general...