Krueger v. Lynch

• Decision Date: 05 June 1951
• Docket Number: No. 47847,47847
• Citation: 48 N.W.2d 266,242 Iowa 772
• Parties: KRUEGER v. LYNCH.
• Court: Iowa Supreme Court

Page 266

48 N.W.2d 266

242 Iowa 772

KRUEGER v. LYNCH.

No. 47847.

Supreme Court of Iowa.

June 5, 1951.

Hall, Galloway & Swanson, of Des Moines, for appellant.

Chas. W. Bowers, of Des Moines, for appellee.

THOMPSON, Justice.

The original notice herein was served by the sheriff of Polk county upon the defendant on April 12, 1950. No copy of the petition was attached, and the petition was not filed until April 13, 1950. The notice was in this form:

'You are hereby notified that the petition of the plaintiff in the above entitled action will be on file April 15, 1950, in the office of the clerk of the district court of Iowa, in and for Polk county, claiming of you the sum of $6,281.60, as the result of an assault committed upon the body of the plaintiff on or about April 25, 1948; said assault causing this plaintiff to be hospitalized for a period of more than three months, to expend the sum of $56.60 for hospital expenses, to expend the sum of $150 for medical expenses, to be away from gainful employment for a period of over three months, all of which resulted in great pain and suffering to this plaintiff, and has caused permanent injuries to this plaintiff. You are further notified to appear before said Court at Des Moines, in Polk county, Iowa, within 20 days after the service of this notice upon you, and that unless you so appear, your default will be entered and judgment or decree rendered against you for the relief demanded in the petition.' (Italics supplied.)

There was also printed in the notice, and upon its face, the following: 'NOTE: If petition is neither filed nor copy attached, appearance date must be 30 days.'

The special appearance was bottomed upon the claim that the notice as served failed to comply with the requirements of Rule 50, Rules of Civil Procedure, 58 I.C.A., which specifies what the contents of an original notice shall be, and Rule 53, which says when the defendant shall be required to appear under various conditions, including the situation when the petition is not on file at the time of service and a copy is not attached to the notice. The trial court upheld this contention, ruled that the notice was void, and quashed the service.

In the background of this appeal is the question of the statute of limitations; but it is of no importance so far as the determination of the legal issues involved here is concerned and will not be considered or referred to further.

I. We begin with a consideration of the authorities bearing upon the question of whether the notice was so defective that it must be considered as no notice, or whether it was a mere irregularity insufficient to support a special appearance, or whether it was in fact no irregularity at all. We set out at this point Rules of Civil Procedure Nos. 50 and 53. Rule 50 says: '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.'

Rule 53 follows:

'Time for appearance. A defendant served by publication only, must appear on or before the date fixed in the notice as published, which date shall not be less than twenty days after the day of last publication. If served in any other manner, the defendant shall appear within twenty days after the day the original notice is served on him in all cases where:

'(a) A copy of the petition is attached to the original notice; or

'(b) The petition is on file when the notice is served, and the notice so states.

'In all other cases the defendant shall appear within thirty days after the day such notice is served. Unless he so appears, he will be in default; but if he does appear, he shall have time to move or plead as provided in rule 85.'

The appellee says that Rule 50 requires that he be advised to appear before the court within the number of days specified in Rule 53; that he was entitled to be notified that he had 30 days, and since he was in fact required to appear within 20 days, the notice was entirely void. He cites Pendy v. Cole, 211 Iowa 199, 233 N.W. 47; Fernekes & Bros. v. Case, 75 Iowa 152, 39 N.W. 238; Swan v. McGowan, 212 Iowa 631, 231 N.W. 440; and Union Savings Bank & Trust Co. v. Carter, 214 Iowa 1131, 243 N.W. 523.

The Swan case is of no aid to defendant. It holds only that it was not necessary to name the actual appearance date, if the defendant was notified to appear on or before the second day of the next (properly designated) term. The other three cases last cited turn upon the fact that an erroneous date was given for the commencement of the term at which the defendant was required to appear. Other cases, such as Boals v. Shules, 29 Iowa 507, might be cited to the same effect. The reason for the rule is pointed out in Pendy v. Cole, supra 211 Iowa at page 201, 233 N.W. at page 48 where it is said: 'But the alleged notice in this case purported to fix the date of the term as of a certain mistaken date. The incorporation of such mistaken date was necessarily misleading. In such a case we have held repeatedly that the mistake is fatal to the validity of the notice.' (Italics supplied.)

There are other Iowa cases in which a defective notice has been held void. In Kitsmiller v. Kitchen, 24 Iowa 163; Decatur County v. Clements, 18 Iowa 536; Van Vark v. Van Dam, 14 Iowa 232; and, Des Moines Branch of the State Bank v. Van, 12 Iowa 523, the notice failed to state the term or the time of its commencement, merely referring to the next term of the court. In other cases, notices which gave a return date already past, or which were unsigned, have been held void. These holdings approach the question involved here, but do not reach it.

If the notice involved in this case is to be held so defective as to be void and therefore to give no jurisdiction over the defendant, it must be because it required him to appear within 20 days, when under Rule 53 he was entitled to 30 days. He was not mislead by an incorrect date for the commencement of a term of court, nor did any of the other defects pointed out in the Iowa cases above referred to appear. There is no Iowa authority, apart from the statute and case which will be considered in Division II hereof, which reaches this situation. But it has been before the courts of other jurisdictions, and they have upheld the validity of the service. In United Order of Good Samaritans v. Brooks, 168 Ark. 570, 270 S.W. 955, 956, the Arkansas supreme court had an identical situation before it. A statute of that state provided for the method of service of process upon a fraternal benefit society, such as the appellant. The material part is set out: "No such service shall be valid or binding against any such society when it is required thereunder to file its answer, pleading or defense in less than thirty days from the date of mailing the copy of such service to such society."

The notice served upon the company required it to appear within 'twenty days from the service of the summons.' It did not appear, and after thirty days judgment was rendered against it. Thereupon it appeared and asked that the judgment be set aside and the service quashed. This the Arkansas court refused to do, saying:

'We think there was no violation of this statute in the rendition of the judgment appealed from. The recitals of the summons were not effective to abridge the length of time given to plead, but it could and did apprise the defendant of the pendency of the action, and could not be ignored because of the erroneous recital that the allegations of the complaint would be taken as confessed after 20 days. The law gave the defendant 30 days in which to plead, and it was not in default until the expiration of that time. But the law gave only 30 days for that purpose, and this time was not extended by the erroneous recital contained in the summons.

'The defendant knew when the summons was served that its time could not be shortened to 20 days, because the statute required a service of 30 days, but the defendant must also have known that the service would be complete after 30 days, because the statute so provides.'

The fact situation is identical, and the reasoning appeals to us as sound.

In Lockway v. Modern Woodmen of America, 116 Minn. 115, 133 N.W. 398, a factual situation very similar to that existing in the Arkansas case just cited appeared. Here also the statute provided that no service upon a fraternal benefit association should be valid or binding when it was required to appear in less than thirty days after service. The summons as served required appearance in twenty days. The trial court refused to hold that the service was void, but permitted the plaintiff to amend it by changing the '20' to '30', and, as so amended, held it to be a valid service. This ruling was upheld by the Minnesota supreme court. To the same effect is Barker Co. v. Central WestInv. Co., 75 Neb. 43, 105 N.W. 985. Some attempt is made to distinguish these cases because in Minnesota and Nebraska actions are commenced through service of summonses, which issue from the court. But the Minnesota court has said, in Flanery v. Kusha, 143 Minn. 308, 173 N.W. 652, 6...