Moffitt v. Chi. Chronicle Co.

• Decision Date: 28 January 1899
• Citation: 107 Iowa 407,78 N.W. 45
• Parties: MOFFITT v. CHICAGO CHRONICLE CO.
• Court: Iowa Supreme Court

107 Iowa 407

78 N.W. 45

MOFFITT

v.CHICAGO CHRONICLE CO.

Supreme Court of Iowa.

Jan. 28, 1899.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

Action at law to recover damages for a libel published by defendant of and concerning the plaintiff. Defendant pleaded in abatement to the jurisdiction of the court, and also interposed a plea in mitigation. Trial to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals. Affirmed.Cummins, Hewitt & Wright, for appellant.

J. K. Macomber, for appellee.

DEEMER, J.

Appellee commenced his action by serving original notice upon one Osborne Shannon, agent of the Chicago Chronicle Company. Appellant was required to appear and defend at the April, 1896, term of the district court of Polk county, which commenced on the 6th day of April in that year. No appearance seems to have been made on behalf of appellant, although we find some affidavits filed in the month of April relating to the character of Shannon's agency. On the 9th day of May the cause was called for trial, and the court, finding that service of notice was sufficient, granted a default against the appellant. Thereafter a jury was called to assess plaintiff's damages, which returned a verdict for the amount claimed. In granting the default, the court considered the affidavits to which we have referred, and found specially that the appellant had an office and agency in Polk county for the transaction of its business, and that the libel complained of grew out of this business. A short time after the rendition of judgment on the verdict, appellant entered an appearance, and moved to set aside the default and judgment, and for a new trial, based upon the ground that, through a misunderstanding between counsel, appellant was not represented at the trial. This motion also recited that appellant had a good defense to plaintiff's action. The motion was sustained on October 20, 1896, and appellant was ordered to file answer by November 9th. The answer filed in response to this order contained a plea in abatement to the jurisdiction of the court, and also a plea in mitigation of damages. The plea in abatement stated, in substance, that appellant is a corporation organized under the laws of the state of Illinois for the purpose of publishing a newspaper; that it never had an office or agency in the state of Iowa for the transaction of its business, and that it never had an agent or clerk employed in any office in this state; that the alleged cause of action stated in appellee's petition did not grow out of, nor was it connected with, any office or agency in this state; that it has never entered the state for the transaction of its business, nor appointed any agent upon which it consented that service of process might be made; that Osborne Shannon, upon whom service was made, was not at any time connected with any office or agency of appellant in this state, nor was he ever employed in any office or agency of appellant in this jurisdiction; and that there has been no other service of original notice in this case save the service upon Shannon. Appellee moved to strike this plea upon the grounds: First, that it was an attempt on the part of appellant to relitigate the question of jurisdiction, which had already been determined adversely to him by the court; and, second, that, as appellant had appeared and answered on the merits, it is not permitted to raise the question of jurisdiction, since voluntary appearance and answer on the merits waives the question of jurisdiction; and, third, that the default was set aside on condition that appellant should not raise the question of jurisdiction, but should answer on the merits. This motion was sustained, and on the ruling appellant assigns error.

Appellee abandons the third ground of his motion on this appeal, and the question we have to determine is whether appellant is in such position as that he may raise the question of jurisdiction by plea in abatement based upon the fact that it was not properly served with notice. In passing upon this point we must assume that the service of notice upon Shannon was not sufficient to give the court jurisdiction over appellant, although we may observe, in passing, that there may be some doubt as to the sufficiency of the showing, and the pivotal question is, did appellant, by appearing to set aside the default, and by filing an answer as to the merits, waive notice, and dispense with the necessity of proper service? That question seems to be answered by paragraph 3 of section 2626 of the Code of 1873, which reads as follows: “The mode of appearance may be--(2) By an appearance, even though specially made by himself or his attorney, for any purpose connected with the cause, or for any purpose connected with the service or insufficiency of the notice, and an appearance, special or other, to object to the substance or service of the notice, shall render any further notice unnecessary, but may entitle the defendant to a continuance, if it shall appear to the court that he has not had the full, timely notice required of the substantial cause of action stated in the petition.” In applying that section to a case in which there was a plea of abatement very similar to the one in the case at bar, we said: “It is claimed that jurisdiction of the defendant was not acquired by service of the original notice on Hawley, and we think that is true. He was not employed in the general management of the business of the defendant, nor in any office or agency which belonged to it in this state. But an action may be brought against an insurance company in any county in which the loss insured against for which recovery is sought occurred. * * * It is clear that the district court had jurisdiction of the subject-matter of the action, and it is also clear that under the statutes of this state and the decisions of this court the appearance of the defendant to object to the service of the notice was sufficient to confer jurisdiction upon the district court,”--citing the section quoted, and Johnson v. Tostevin, 60 Iowa, 47, 14 N. W. 95;McFarland v. Lowry, 40 Iowa, 468;Rahn v. Greer, 37 Iowa, 627;Post v. Brownell, 36 Iowa, 498;McKnight v. McCullough, 21 Iowa, 111. It follows that the district court acquired jurisdiction of both the defendant and the subject-matter of the action. See Lesure Lumber Co. v. Mutual Fire Ins. Co., 101 Iowa, 519, 70 N. W. 761. That case, as well as those cited, seem to rule the question presented.

But it is contended that the rule does not apply to this case, for the reason that the court did not and could not obtain jurisdiction of appellant by the service of notice, and that, as jurisdiction could only be acquired by voluntary submission, there may be a special appearance for the purpose of moving the court to abstain from entering a judgment which it had no lawful power to enter. Reliance is placed upon sections 2585 and 2613 of the Code of 1873, which read as follows:

“Sec. 2585. When a corporation, company, or individual, has an office or agency in any county for the transaction of business, any suits growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located.”

“Sec. 2613. When a corporation, company, or individual, has, for the transaction of any business, an office or agency in any county other than that in which the principal resides, service may be made on any agent or clerk employed in such office or agency, in all actions growing out of or connected with the business of that office or agency.”

The argument proceeds on the theory that, unless a corporation has an office or agency in this state, and its agent is served in the manner pointed out in these sections of the statute quoted, the court can acquire no jurisdiction over it. If this were true, there would be much force in appellant's contention, for, if appellant could not, by proper service, be brought under the jurisdiction of the court, its appearance to object to the jurisdiction would not amount to a waiver. As said in the case of Spurrier v. Wirtner, 48 Iowa, 486: “A want of notice is not waived by appearance where notice is jurisdictional, except where a subsequent notice would have the effect to give jurisdiction.” But we do not think the statutes quoted should be given the construction counsel would have us place upon them. It has already been decided that the first of them merely fixes the county in which the suit shall be brought, and does not define the manner in which jurisdiction may be acquired. Association v. Walker, 50 Iowa, 75. And in an early case we decided that the section was permissive, and not mandatory, and that the suit, if against a nonresident, might be brought in the usual manner of actions against nonresidents. Dean v. White, 5 Iowa, 266. Again, service need not be in accordance with the provisions of section 2613. It may be made upon any trustee or agent of the corporation, or upon any agent employed in the general management of the business. Code 1873, § 2612; Association v. Walker, supra; Winney v. Manufacturing Co., 86 Iowa, 608, 53 N. W. 421. As appellant was a nonresident of this state, it might be sued in any county in which it could be found. Code 1873, § 2586. And service might be made under section 2612 of the Code of 1873. This is not, then, a case where jurisdiction could not be acquired by service of notice. Notice might be served upon any trustee or officer of the corporation, or upon any agent employed in the general management of its business.

The cases heretofore decided by this court which are relied upon by appellant are not in point. That of Spurrier v. Wirtner, supra, related to the failure of appellant to serve his notice of appeal within the 20 days allowed...