Maloney v. Iowa-Illinois Gas & Electric Co.

• Decision Date: 31 January 1950
• Docket Number: No. 1-27.,1-27.
• Citation: 88 F. Supp. 686
• Parties: MALONEY v. IOWA-ILLINOIS GAS & ELECTRIC CO.
• Court: U.S. District Court — Southern District of Iowa

88 F. Supp. 686

MALONEY v. IOWA-ILLINOIS GAS & ELECTRIC CO.

No. 1-27.

United States District Court S. D. Iowa, Davenport Division.

January 31, 1950.

Larned A. Waterman and Otto C. Bauch (of the firm of Lane & Waterman), Davenport, Iowa, for the movant (defendant).

John V. Chapman, Davenport, Iowa, for the respondent (plaintiff).

SWITZER, District Judge.

The above entitled matter came on for hearing in open court at Davenport, Iowa, on January 11, 1950, on a special appearance and motion by the defendant to quash the process. Argument was had and the matter duly submitted.

This action was commenced by the Administrator of the Estate of Clara Hass in the District Court of Iowa in and for Scott County, Iowa, and removed on November 21, 1949, to this court, whereupon the defendant moved to quash the service of the original notice issued out of the State court, on the ground that the said notice served upon it was erroneous in that it was not directed to "Iowa-Illinois Gas and Electric Company" as required by Rule 50 of the Iowa Rules of Civil Procedure and hence, that no jurisdiction over the defendant had been obtained in this action.

Defendant asserts, and it is not controverted, that the correct corporate name of this company is — "Iowa-Illinois Gas and Electric Company." The affidavits attached to defendant's motion discloses that it is an Illinois Corporation with its principal place of business at Rock Island, Ill., but that it is authorized to transact business as a foreign corporation in Iowa and that the certificate that it obtained from the Iowa Secretary of State was filed for record in Davenport, Iowa. It is common knowledge that this company is the gas and electric utility serving the people of the Quad City area, of which Davenport, Ia., is the principal city, and that it is the only such utility so operating in that area.

As disclosed by the return of service on file herein, the original notice was actually served upon an officer of the defendant company and that the method of service was in compliance with the statutory requirements. In the caption of the original notice served upon the defendant in this instance, appeared the name — "The Iowa — Illinois Gas and Electric Company, a corporation, Davenport, Iowa — Defendant."

Removal proceedings from a State court to the federal court under 28 U.S. C.A. § 1446, do not prevent the defendant from making the same objections in this court that it might have made in the State court as to jurisdiction over the person had the action remained there, and the validity of the attempted service of process in the State court remains open to question in the federal court on removal by the defendant. General Investment Co. v. Lake Shore & M. S. R. Co., 260 U.S. 261, 43 S.Ct. 106, 67 L.Ed. 244. The Iowa law on the sufficiency of the original notice as to form, substance and manner of service therefore controls.

Rule 48 of the Iowa Rules of Civil Procedure provides that a civil action is commenced by the service of an original notice upon a defendant. Under Rule 50, it is required that, "The original notice shall be directed to the defendant."

It is the principal contention of the defendant on this motion and special appearance that under the Iowa law, an original notice which omits the name of a defendant or misnames a defendant (unless the misnomer be within the rule of idem sonans) is, as to such defendant, void and without legal effect; that such a notice is equivalent to no notice, and hence, that there is no jurisdiction of the person of the defendant in this court to further entertain the action. This is a most challenging contention and has caused the court to give the question involved extensive examination.

At the threshhold of our inquiry considerable concern was occasioned by the form of defendant's "Special Appearance and Motion to Quash Process" itself. At least one Iowa authority would seem to hold that the inclusion in such a pleading of a request for some other relief than that of attacking the jurisdiction would constitute a general appearance. In the instant case in line 5 of the motion appears the affirmative request that the court dismiss the action, by the inclusion of the words — "and to dismiss this case." In Wood, Bacon & Co. v. Young, 38 Iowa 102, 106, appears the statement: "A motion which calls into action the powers of a court for any purpose, except to decide upon its own jurisdiction constitutes a full appearance."

This case has not been distinguished or overruled in subsequent cases. However, a more liberal position has recently been adopted by the Supreme Court of Iowa: Read v. Rousch, 189 Iowa 695, 701, 179 N.W. 84; Johannsen v. Mid-Continent Petroleum Corp., 227 Iowa 712, 719, 288 N.W. 911; which forces the conclusion here that the form and substance of the pleading filed by the defendant does in fact constitute a special appearance solely to attack the jurisdiction of the court over its person.

It is unfortunate that there is no Iowa authority existent wherein a similar situation to the one which confronts us here has been decided. Indeed, the authority cited by the defendant in support of its proposition includes no case wherein the name of a corporate entity was involved, nor have I been able to discover any such authority in this State, except in such cases as appeals from the assessment for general or special taxes by boards of review of political subdivisions of the State, under which said situations a special statute not here involved is controlling, such as — In re Paving Assessments, 193 Iowa 1234, 188 N.W. 780; Farmers' State Savings Bank of Fairbank v. Town Council of Fairbank, 199 Iowa 1275, 202 N.W. 80; Midwestern Realty Co. v. City of Des Moines, 210 Iowa 942, 231 N.W. 459.

Careful analysis of the original notice here discloses that the true corporate name of the defendant is included therein, that the article "The" appears before that name and the words "a corporation, Davenport, Iowa," follow it. These words are purely descriptive and not nominative. The comma immediately following the corporate name sets the words "a corporation, Davenport, Iowa" apart from the corporate name, and as descriptive and not nominative. For purposes of nomenclature the use of the word "The" immediately preceding a corporate name is not uncommon in ordinary speech. It is evident that the surplusage of these descriptive words was joined to the true corporate name out of an abundance of caution on the part of the plaintiff to aid the process server and to make sure that the notice was "directed to the defendant."

As was said by the Iowa Supreme Court in the case of Snyder v. Incorporated Town of Spirit Lake, 218 Iowa 774, at page 776, 254 N.W. 14, at page 16, quoting from Sleeper v. Killion, 166 Iowa 205, 147 N. W. 314:

"The notice must be addressed to the party named in the petition as defendant. Why? So that the officer charged with the duty of serving the notice may be informed of the name, and thereby the identity of the person on whom service is required to be made. It must be served on the party named in the petition, as defendant, in the name by which he is identified in the petition. Why? So that the court, in case of default, may be able to say, on an inspection of the petition and return, that the party named in the petition, as defendant, and against whom relief is sought, has been served with notice of the action against him. * * *

"Men are known, and their identity fixed, by the name by which they are known. When addressed by name, they respond as segregated individual entities. When not so addressed, they, as a rule, are not expected or required to respond. In nearly every state in which courts acquire jurisdiction by writ, summons, or process, it is required that the paper, on the service of which the court assumes a right to act, must be addressed to the party summoned, by his true name, or by the name by which he is generally known. * * *"

The defendant corporation was the only utility operating in Davenport, Iowa, with a comparable corporate name. A proper officer of the defendant corporation was actually served with the original notice in this case. The descriptive words used, in addition to the corporate name, in the original notice could not conceivably have misled the defendant, nor could fraud or imposition have devolved upon it. It is obvious that the name used in the original notice is one by which said defendant corporation is generally and commonly known in the community.

It is true that the Supreme Court of Iowa is not given to a liberal point of view on the subject of defective original notices. See the article in 23 Iowa Law Review 246, 252, (January 1938), on the "Requisites of an Original Notice in Iowa," wherein the writer speaks of "the uncomfortable position which lawyers have created for themselves as the...