Mintle v. Sylvester, 35641.
| Decision Date | 04 March 1924 |
| Docket Number | No. 35641.,35641. |
| Citation | 197 N.W. 305,197 Iowa 424 |
| Parties | MINTLE v. SYLVESTER ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jasper County; D. W. Hamilton, Judge.
Action in equity to vacate a judgment and decree upon the ground that no service of the original notice had been made on the defendants therein. From a decree as prayed, defendants appeal. Reversed.Ed. P. Malmberg and Cross & Hamill, all of Newton, for appellants.
Korf & Korf and Ross R. Mowry, all of Newton, for appellee.
This is an action to set aside a decree entered against the plaintiff herein, in an action to quiet title, wherein he was defendant and the defendants herein were plaintiffs. The court below vacated the decree on the ground that there was no such service of the original notice in the former action as to give the court jurisdiction. The correctness of this ruling is the ultimate question presented, although there is necessarily also involved the refusal of the court to permit the return of the original notice to be amended.
The land involved in the action to quiet title is in Jasper county, and the original action was there pending, but the appellee, the defendant therein, was at the time a resident of Poweshiek county. The return of service of the original notice in the former action was by the deputy sheriff of Poweshiek county, and showed that the original notice was served personally on the defendant therein, by reading the notice to him and delivering to him a copy, in Sugar Creek township, Poweshiek county.
It is conceded this return does not correctly state the fact as to the service. The testimony of the officer who served the notice is uncontradicted, and to the effect that he served it on the defendant in the action to quiet title by leaving a copy thereof with Lorene Mintle, the wife of the defendant, a member of his family over 14 years of age, at the defendant's usual place of residence in Sugar Creek township, Poweshiek county, and that the defendant was not found within the county of his residence. There was, in fact, good service on the defendant in that action by substituted service. The defendants in this action, after that fact was shown, asked that the officer be authorized to amend his return in accordance with the truth. This was denied.
[1] Code, § 3521, provides, in reference to an officer's return of service of an original notice, that “the court may permit an amendment according to the truth of the case.” Independent of the statute, the power to permit amendments is inherent in the courts and exists at common law. 32 Cyc. 538; O'Brien v. Gaslin, 20 Neb. 347, 30 N. W. 274.
[2] Amendment of the return of service of notice or summons may be made after judgment. See Lawrence v. Howell, 52 Iowa, 62, 2 N. W. 617, where there was no return of service until a year after the judgment was rendered, and Hoyt v. Brown, 153 Iowa, 324, 133 N. W. 905. In Jeffries v. Rudloff, 73 Iowa, 60, 34 N. W. 756, 5 Am. St. Rep. 654, the sheriff was permitted to amend his return on a writ of attachment after judgment and when an action was pending against him based on the return. See, also, 32 Cyc. 539; 21 R. C. L. 1329; O'Brien v. Gaslin, supra; Shufeldt v. Barlass, 33 Neb. 785, 51 N. W. 134;Schmidt v. Stolowski, 126 Wis. 55, 105 N. W. 44;Wade v. Wade, 92 Or. 642, 176 Pac. 192, 178 Pac. 799, 7 A. L. R. 1143, and cases there cited.
It is insisted, however, that this is a case of false return and not merely a defective return, and that in such case the court acquired no jurisdiction to render the original judgment, and the return may not be amended. We do not regard the distinction as important or controlling. Any return that misstates the facts may be said to be a false return, but, we think, for the reasons hereafter stated, that fact does not prevent an amendment according to the truth. In Liston v. Railway Co., 70 Iowa, 714, 29 N. W. 445, the question arose with respect to the service of a notice required to entitle the owner of stock injured by a railroad, at a point where it had the right to fence its right of way, to recover double damages. It was held the officer's return, showing that service had been made by leaving a copy, could be corrected by testimony that the original was served. In Buckmiller v. Railway Co., 164 Iowa, 502, 146 N. W. 447, the return showed the notice was served by one as sheriff, outside his county, but he was permitted to amend the return to show that he served it in his individual capacity and not as an officer. See, also, Shufeldt v. Barlass, supra.
It is the fact of service that confers jurisdiction, not the return of service merely. The return of service of notice made by one serving it is but a method provided by statute for establishing the facts of the service. This distinction has not always been observed by the courts, it is true, but it is sound in principle and amply supported by authority. In Lawrence v. Howell, supra, it was insisted that a return of service was jurisdictional because there could be no determination from an inspection of a record which had no existence. The court said:
“The position is certainly plausible, but where service is actually made it appears to us that jurisdiction is acquired so far as the person is concerned.”
In Buckmiller v. Railway Company, supra, it was said it was the fact of service that gave jurisdiction; that the evidence of the service might be insufficient, but, if the notice was actually served as required by law and by one authorized, the return might be corrected. To the same effect are Schmidt v. Hoffman, supra; O'Brien v. Gaslin, supra; Shufeldt v. Barlass, supra; Wade v. Wade, supra; Leland...
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