Matney v. Currier, 55198

• Decision Date: 17 January 1973
• Docket Number: No. 55198,55198
• Parties: Edward H. MATNEY, Appellant, v. Franklin Kermit CURRIER, Appellee.
• Court: Iowa Supreme Court

Page 589

203 N.W.2d 589

Edward H. MATNEY, Appellant, v. Franklin Kermit CURRIER, Appellee.

No. 55198.

Supreme Court of Iowa.

Jan. 17, 1973.

Rehearing Denied March 22, 1973.

Paul W. Deck Law Office and Robert J. Larson, Sioux City, for appellant.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellee.

Heard by MOORE, C. J., and MASON, RAWLINGS, REES and HARRIS, JJ.

REES, Justice.

This appeal comes to us from an order of the trial court sustaining defendant's motion for summary judgment and dismissing plaintiff's claim for personal injuries.

On March 23, 1969 plaintiff and defendant were involved in an automobile accident in Sioux City, at which time defendant was a resident of Ree Heights, South Dakota. On September 28, 1970 plaintiff filed his petition in the office of the clerk of the Woodbury County District Court seeking recovery for personal injuries and for property damages arising out of the accident.

On September 29, 1970 plaintiff filed with the Commissioner of Public Safety of the State of Iowa, pursuant to the provisions of 'Non-Resident Motor Vehicle Act', § 321.501, The Code, 1969, an original notice of the pendency of his suit. On October 5, 1970 plaintiff mailed to defendant at his Ree Heights, South Dakota, address a notification in compliance with the non-resident motor vehicle act, but the envelope and notice were returned to plaintiff on October 19, 1970, upon which it was indicated that the addressee-defendant had moved and left no forwarding address.

On March 2, 1971 defendant filed his special appearance attacking the jurisdiction of the court over his person for failure of plaintiff to comply with the provisions of sections 321.501 to 321.505, The Code, 1969, in that the notification was not actually received by nor refused by the non-resident defendant. On April 30, 1971 the special appearance was sustained and the purported or attempted service was quashed.

A new notice, addressed to the defendant, was mailed on June 2, 1971, to his address at Kosmos, Minnesota, and was received by defendant on June 3, 1971.

On June 18, 1971 defendant filed answer in which he affirmatively alleged the plaintiff's action insofar as it related to his claim for personal injury was barred by the statute of limitations, and on the same date defendant filed motion for summary judgment, in which he asserted the statute of limitations operated to bar plaintiff's personal injury claim.

Following hearing, on August 11, 1971, the court sustained defendant's motion for summary judgment and dismissed plaintiff's claim for personal injuries. Plaintiff appeals from such ruling.

Plaintiff assigns two errors upon which he relies for reversal: (1) the trial court erred in sustaining defendant's motion for summary judgment in concluding that no service was had upon defendant and that the court had no jurisdiction over defendant; and (2) trial court erred in concluding the statute of limitations had expired on plaintiff's personal injury claim.

In connection with his first assigned error, plaintiff asserts the filing of a general appearance by defendant submitted defendant to the jurisdiction of the court and that such filing constituted a waiver by defendant of all claims that the court lacked jurisdiction and waived any defects in service of notice, and further, the filing of general appearance precluded defendant from raising the bar of statute of limitations. He further asserts plaintiff's cause of action was not destroyed when plaintiff relied upon the last known address of the defendant in attempting to comply with the statutory requirement for mailing notification where the defendant had moved leaving no forwarding address.

I. As noted above, the accident out of which the plaintiff's claim for damages arises occurred March 23, 1969, and any action to recover for personal injuries was required to have been commenced within two years from the date of the injury.

Rule 48 of the Rules of Civil Procedure provides, 'A civil action is commenced by serving the defendant with an original notice.'

Section 614.1, The Code, 1969, provided:

'Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

'(2) Injuries to person or reputation--relative rights--statute penalty. Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years.'

Plaintiff's claim was therefore barred by the operation of the statute of limitations unless the plaintiff was able to show that somehow the statute of limitations was tolled beyond March 23, 1971.

Only one copy of the original notice of suit was filed with the Commissioner of Public Safety as is required by § 321.501, The Code, and this notice was filed on September 29, 1970. When the court sustained the special appearance of defendant, the legal efficacy of the notice filed with the Commissioner of Public Safety was completely destroyed. The service, or purported or attempted service, upon the defendant by the mailing on June 2, 1971, of the notification addressed to defendant at Kosmos, Minnesota, therefore, had nothing to relate back too. We incline to the view that even if the special appearance of defendant had not been sustained that the statute of limitations was not tolled simply by filing the notice with the Commissioner of Public Safety, unless compliance with the non-resident motor vehicle act, specifically § 321.501, The Code, was complied with by further mailing a notification to the defendant and securing either his receipt therefor or advice that he had refused it within the limitation period.

In Esterdahl v. Wilson, 252 Iowa 1199, 1207, 110 N.W.2d 241, 245, this court said:

'The plaintiff next urges that the statute of limitations was tolled by the first service upon the commissioner of public safety. It is evident the real contention here is that service on the commissioner gives jurisdiction; there is no other way in which the statute may be tolled. R.C.P. 49 gives the only method, other than by a sufficient service of notice, by which this may be done. It provides the statute is tolled by delivering the original notice to the sheriff of the county in which the action is brought with the intent it be forthwith served. There is no claim this was done here.'

Plaintiff places considerable reliance upon our pronouncements in Kraft v. Bahr, 256 Iowa 822, 128 N.W.2d 261. Two important distinctions between Kraft and the matter at bar are readily apparent. In Kraft both the filing with the commissioner and the mailing by restricted certified mail were timely; however, because the defendant had moved he did not receive the notice and notification of filing until after the statute of limitations had run. The notice which gave jurisdiction was the notice which was timely mailed and was eventually received and receipted for by this defendant 22 days after it had been filed with the Commissioner of Public Safety--well within the 60-day time required for appearance.

In the matter now before us neither of the elements present in Kraft are established. The defendant in the instant case did not receive or receipt for the notification of filing of original notice which was timely mailed, and the service of such document upon him, accompanied by another original notice, was not made until long after the 60-day period for appearance had expired from and after the date of filing of the original notice with the Commissioner of Public Safety.

In Kraft this court held that if notification of filing with original notice attached thereto is in proper form and is timely mailed prior to the running of the statute of limitations and is eventually received and receipted for by the defendant, then the time of service insofar as the statute of limitations is concerned, will be the date of the filing of the notification with the Commissioner of Public Safety and not the date of receipt by the defendant. It does not constitute a holding that merely by doing these acts the statute of limitations is tolled.

Plaintiff further places considerable reliance upon the two Emery Transportation Company cases, viz: Emery Transportation Co. v. Baker, 254 Iowa 744, 119 N.W.2d 272, and Emery Transportation Co. v. Baker, 257 Iowa 1260, 136 N.W.2d 529 (Emery II).

In Emery II the plaintiff first failed to obtain jurisdiction over the defendant by reason of the...