Littlejohn v. Bulles

• Decision Date: 12 November 1907
• Citation: 113 N.W. 756,136 Iowa 150
• Parties: LITTLEJOHN v. BULLES ET AL. BULLES v. LITTLEJOHN ET AL.
• Court: Iowa Supreme Court

136 Iowa 150

113 N.W. 756

LITTLEJOHN

v.BULLES ET AL.

BULLES

v.LITTLEJOHN ET AL.

Supreme Court of Iowa.

Nov. 12, 1907.

Appeal from District Court, Floyd County; J. F. Clyde, Judge.

These two actions for partition of the same property involving the rights of the same parties with reference thereto were tried together in the district court, each being pleaded in the other by way of abatement as a prior action pending. The plea in abatement was sustained in the first action and overruled in the second. Mary J. Littlejohn, who was plaintiff in the first action and one of the defendants in the second, appeals. Affirmed.A. H. Reid, R. E. Smith, and Ellis & Ellis, for appellant.

P. W. Burr and G. E. Marsh, for appellees.

McCLAIN, J.

The first action was commenced by serving notice by publication, such manner of service being authorized by Code, § 3534, and the last publication was made on the 15th day of December, 1905. The petition was filed on the same day. But on the 7th day of December, 1905, the petition in the second case was filed, and notice thereof was personally served upon the defendants in the state of Wisconsin. By proper pleas in abatement, the contention was made in each case that the other was already pending, and the sole question for our determination is whether the completed service in the first case related back to the time when the affidavit for publication was filed and the first publication made, for only on that theory can appellant claim that the first of these actions was pending when the second was commenced by the service of notice.

By Code, § 3514, it is provided that “an action in a court of record shall be commenced by serving the defendant with a notice,” etc. A defendant served by publication is required “to appear if personally served on the day of the last publication.” Code, § 3536. Personal service on a nonresident is a substitute for publication of notice. Code, § 3537. Under these provisions, it would seem to be clear that, when the notice was served on the nonresident defendants in the second case, the first of these actions had not been commenced, for at that time there was no such service in the first as required an appearance by the defendants. If nothing further had been done in the first of these actions after service of notice in the second, then the first action could never have become an action pending, for it would not have been commenced. This it seems to us disposes of the argument on behalf...