McArtor v. Pete's Cafe

• Decision Date: 10 March 1970
• Docket Number: No. 53816,53816
• Citation: 175 N.W.2d 369
• Parties: Alta McARTOR and Howard McArtor, Appellants, v. PETE'S CAFE, a/k/a Pete's Truck Stop Cafe, Juan P. Byers, Truck Fuels Service Company; Delbert Danley; American Oil Company, a corporation; and Irene King, Appellees.
• Court: Iowa Supreme Court

Page 369

175 N.W.2d 369

Alta McARTOR and Howard McArtor, Appellants, v. PETE'S CAFE, a/k/a Pete's Truck Stop Cafe, Juan P. Byers, Truck Fuels Service Company; Delbert Danley; American Oil Company, a corporation; and Irene King, Appellees.

No. 53816.

Supreme Court of Iowa.

March 10, 1970.

Roland D. Peddicord and Ronald L. Sutphin, Des Moines, Donald Lipman, Chicago, Ill., for appellants.

Randy Duncan, Jr., and Thomas A. Finley, Des Moines, for appellees.

MASON, Justice.

March 10, 1969, Alta and Howard McArtor filed this law action to recover damages for injuries sustained by Mrs. McArtor from a fall alleged to have been proximately caused by defendants' negligence in spilling hot coffee on her while a customer in Pete's Cafe in Des Moines March 13, 1967. In one division she claims damages for possible scars and disfigurement, loss of earnings and pain suffered as a result of her injuries. In a separate division as a basis for further recovery her husband asserts that as a proximate consequence of defendants' negligence he sustained loss of his wife's affection society, companionship and consortium, and incurred medical expenses for her treatment.

Defendants are alleged to be the owners and operators of the cafe.

The matter reaches us on plaintiffs' appeal assigning one error in which they contend the trial court erred in sustaining defendants' special appearance.

Plaintiffs' attorney mailed the petition and five copies with copies of the original notice and written directions to the clerk of the Polk County district court to file the petition and have the original notices and copies of the petition served. The petition and copies were filed in the clerk's office March 10. The same day only the original notices were delivered to the sheriff's office. His return of service certifies the original notices were served March 11 on all defendants except Irene King. A petition was not attached to any of the original notices served. The five carbon copies of plaintiffs' petition remained in the clerk's file.

March 20 defendants filed special appearance attacking the jurisdiction of the Polk district court asserting no valid original notice had been served on any defendants and the purported original notices were defective and insufficient to confer jurisdiction on the court over them because (1) no copy of the petition was attached to the original notice, nor did the notice contain a general statement of the cause or causes of action as required by the provisions of rule 50, Rules of Civil Procedure and (2) the relief demanded appears to be for money damages, but the notice did not contain a statement of the amount thereof, as expressly required in rule 50, R.C.P.

I. This rule provides:

'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).

In Parkhurst v. White, 254 Iowa 477, 480--483, 118 N.W.2d 47, 49--51, this court held the requirements of rule 50, R.C.P., emphasized above, are mandatory and failure of the original notice to state amount of money damages demanded constituted a substantial noncompliance with the rule of civil procedure pertaining to contents of original notice; such failure cannot be classified as a mere technical and formal defect nor a mere clerical error and thus, where the defect is substantial, the question of actual prejudice does not become controlling. The requirement to set forth the amount of money claimed is vital to the validity of the notice and jurisdiction of the court.

In Krebs v. Town of Manson, 256 Iowa 957, 960, 129 N.W.2d 744, 746, in determining that the original notice to which a copy of the petition was not attached and which did not contain a statement of the cause of action was defective we said 'an original notice which does not contain the matter required by rule 50 is fatally defective and does not confer jurisdiction over the party served with such defective notice. * * * The notice * * * did not contain a statement of the cause of action and was fatally defective. The rule of liberal construction of irregularities did not apply.'

Bice v. Incorporated City of Urbandale, 258 Iowa 1013, 1015, 141 N.W.2d 639, 640, contains this, '* * * (A) failure to comply with the precise and clearly stated requirements of rule 50 is certainly more than a mere irregularity. The rule says what it means and means what it says. Any holding to the contrary would simply subject the rule to doubt and uncertainty which would in turn lead to needless confusion and turmoil.'

In Gordon v. Doden, Iowa, 154 N.W.2d 146, 147--148, in repeating our previous holdings that rule 50 has statutory status and compliance with its requirements is mandatory in order to obtain jurisdiction, we declared:

'It is the only method by which a plaintiff may compel a defendant to submit to the court for a binding adjudication of their differences. * * * (Citing authorities).

'* * *.

'Rules, especially those which fix jurisdictional matters, are not mere technicalities to be observed or ignored as the particular exigencies dictate. They are vital to the proper conduct of court business.'

The foregoing pronouncements are summarized in White v. O'Neill, Iowa, 164 N.W.2d 79, 80 in this language:

'It is too well settled for discussion that compliance with rule 50 is required in order to obtain jurisdiction. Compliance with this rule is the only method by which a plaintiff may compel a defendant to submit to the court for a binding adjudication of their differences. Our previous holdings have firmly established that the provisions of rule 50 are mandatory and that the rule has statutory status. * * * (Citing authorities).'

In Parkhurst v. White, supra, 254 Iowa at 480, 118 N.W.2d at 49, we drew 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. The opinion discusses and clearly explains these differences.

Except for the caption and signatures, the following is a copy of the original...