Mullenger v. Clause, 53924

Citation178 N.W.2d 420
Decision Date23 June 1970
Docket NumberNo. 53924,53924
CourtUnited States State Supreme Court of Iowa
PartiesWilliam L. MULLENGER, Appellee, v. Charles W. CLAUSE and Lorna J. Clause, Appellants.

Wetz v. Cosgrove, Sioux City, and D. Howard Mallonee, Mapleton, for appellants.

Norelius & Norelius, Denison, for appellee.

MASON, Justice.

This is a law action tried to the court in which William L. Mullenger, a licensed real estate broker, seeks to recover from Charles W. and Lorna J. Clause, nonresident defendants, a commission for the sale of their real estate in Crawford County.

Defendants appeal from an adverse judgment.

Plaintiff alleged in one division of his petition an oral listing contract between the parties, performance on his part and defendants' refusal to perform. The other division is based on the theory of quantum meruit. In each division plaintiff asserts defendants are nonresidents and in each prayer asks that an attachment issue and that he have personal judgment against defendants. The Crawford district court entered an order directing property in the value of $1200 be attached.

An original notice with an attached copy of petition and order granting attachment was served on Mrs. Clause in Carroll County, Ohio, and service on Charles was substituted by serving his wife. The original notice, on a printed form, complied with requirements of rule 50, Rules of Civil Procedure. When a copy of the petition is attached, a general statement in the notice of the cause of action, the relief demanded, and if for money, the amount thereof, is not necessary. At the same time defendants were served in similar manner with notice of issuance of a writ of attachment and of levy against their Denison real estate. Code section 639.31.

Defendants appeared specially, challenging the court's jurisdiction because an extraterritorial personal service in an in personam damage action confers no jurisdiction over them.

Before the court's ruling on this special appearance, plaintiff amended his petition by striking the ad damnum clause for personal judgment from both divisions and substituting a prayer for judgment in rem against defendants' Crawford County property for the amount of commission claimed due.

No new original notice in the in rem action was served on defendants, either personally of by publication.

Defendants again contested the court's jurisdiction by appearing specially to the amended petition, asserting the reasons originally urged and the added ground that the original notices served on them in the in personam action conferred no jurisdiction in the subsequent in rem action.

The court ruled the first special appearance was made moot by plaintiff's amendment to his petition and overruled their special appearance to the amendment generally without observing requirements of rule 118, R.C.P. See Tice v. Wilmington Chemical Corp., 259 Iowa 27, 32--33, 141 N.W.2d 616, 620, opinion supplemented in 143 N.W.2d 86.

Defendants then filed answer denying generally the allegations of Division I, admitting only that plaintiff was a licensed real estate broker and they were nonresidents. They asserted as an affirmative defense that the contract alleged in said division was within the purview of the statute of frauds as contained in section 622.32 Code, 1966, and was void--a contention not pursued on appeal. Answering Division II defendants denied generally each paragraph thereof, although in argument they admit plaintiff's status and their nonresidence. In answer to the amended petition they denied the prayer of each division.

I. In seeking a reversal of the judgment awarded plaintiff against them for a 3 percent commission on the contract sale price, interest and costs, defendants assign five errors relied on which they argue in two divisions.

In the first division they maintain the court erred in ruling in effect that the amendment to petition corrected any defect in the service of the original notice and petition and in failing to sustain their special appearance. They also contend the court erred in overruling their special appearance to the amended petition.

Defendants did not waive any alleged error in the court's order overruling their special appearance in proceeding to trial on the merits.

Rule 66, R.C.P., provides:

'A defendant may appear specially, for the sole purpose of attacking the jurisdiction of the court, but only before his general appearance. The special appearance shall be in writing, filed with the clerk and shall state the grounds thereof. If his special appearance is erroneously overruled, he may plead to the merits or proceed to trial without waiving such error.'

In support of the grounds asserted in their special appearances that the original notice confers no jurisdiction upon the court either in rem or in personam, defendants argue jurisdiction over a nonresident defendant in an in personam damage action cannot be obtained by personal service outside the territorial jurisdiction of the court and service of an original notice which confers no jurisdiction over the person to the defendants is void and may not be revised or corrected by an amendment to the petition to confer jurisdiction in rem.

Ordinarily personal service on a nonresident defendant outside this state confers no jurisdiction on courts of this state to enter personal judgment, such service being generally equivalent to publication, rule 64, R.C.P., and confers jurisdiction only in rem. Esterdahl v. Wilson, 252 Iowa 1199, 1204, 110 N.W.2d 241, 243. See also Bauer v. Stern Finance Company, 169 N.W.2d 850, 857 (Iowa 1969); Miller v. Farmers Cooperative Company, 176 N.W.2d 832 (Iowa 1970), filed May 5, 1970; and 72 C.J.S. Process, § 73.

An important distinction between proceedings in personam and in rem is that the purpose of a proceeding in personam is to impose through the judgment of a court some responsibility or liability directly upon the person of the defendant; whereas a proceeding in rem is aimed, not at the person of defendant, but at his property, status or some other thing within the power and jurisdiction of the court. Jurisdiction to render a judgment in rem is primarily founded on the presence of property in the state. Federal Land Bank of Omaha v. Jefferson, 229 Iowa 1054, 1058, 295 N.W. 855, 857--858, 132 A.L.R. 1282, and citations; Knoop v. Anderson, D.C.Iowa N.D. 71 F.Supp. 832, 840.

Defendants' assignment of errors argued in this division--an original notice which confers no jurisdiction over the person of defendants is void and may not be revised or corrected by an amendment to the petition to confer jurisdiction upon the court in rem--presents the question whether the court acquired jurisdiction effective to render judgment against defendants' property.

The only essentials to the exercise of the state's power to proceed against the property of an absent defendant are presence of the res within its borders, its seizure at the commencement of the proceedings and the opportunity of the owner to be heard. Pennington v. Fourth Nat Bank, (1917), 243 U.S. 269, 272, 37 S.Ct. 282, 283, 61 L.Ed. 713, 715, 1917F L.R.A. 1159. A glance at the citator will reveal the frequency with which this case has been relied on as authority.

Of these essentials the res was within the jurisdiction of the Crawford County court and was seized under attachment at the time of the filing of the petition. 'But the mere seizure of property does not confer jurisdiction upon the court to proceed to judgment. * * * The seizure in a suit in rem only brings the property seized within the custody of the court, and informs the owner of that fact. The theory of the law is, that all property is in the possession of its owner, in person or by agent, and its seizure will therefore operate to impart notice to him. Where notice is thus given, the owner has the right to appear and be heard respecting the charges for which the forfeiture is claimed. That right must be recognized and its exercise allowed before the court can proceed beyond the seizure to judgment. The jurisdiction acquired by the seizure is, not to pass upon the question of forfeiture absolutely, but to pass upon that question after opportunity has been afforded to its owner and parties interested to appear and be heard upon the charges. To this end some notification of the proceedings, beyond that arising from the seizure, prescribing the time within which the appearance must be made, is essential. * * * The manner of notification is immaterial, but the notification itself is indispensable.' 3 Freeman on Judgments, Fifth Ed., section 1530.

A similar point of view is expressed in comment b to section 34, Restatement, Judgments:

'Where the defendant is not subject to the jurisdiction of the court and the plaintiff seeks to reach property of the defendant and apply it to the satisfaction of his claim against the defendant, it is ordinarily necessary that the court should acquire jurisdiction over the property at the beginning of the action, since the court has no jurisdiction to proceed in the action where it had no jurisdiction over the defendant or over his property. Thus, if the plaintiff brings an action to recover money against the defendant who is domiciled in another State and the defendant is personally served with process outside the State in which the action is brought and thereafter property of the defendant within the State is attached, a judgment by default is void, not only where the judgment is rendered against the defendant personally, but also where it directs that the property attached be applied to the satisfaction of the plaintiff's claim. Where, however, the defendant is notified of the attachment and is given an opportunity to defend before judgment is rendered against him, a judgment thereafter rendered directing that the property attached be applied to the satisfaction of the plaintiff's claim is valid.'

The illustration following the above quote is remarkably similar on...

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  • Matherly v. Hanson
    • United States
    • Iowa Supreme Court
    • December 19, 1984
    ...Certainly one of the essential features of a contract is an obligation or liability to do or not do something. See Mullenger v. Clause, 178 N.W.2d 420, 428 (Iowa 1970). Where the liability cannot be shown by a writing, it is reasonable to say as a matter of law that an action on such liabil......
  • Khabbaz v. Swartz, 66065
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    ...is conditioned upon the purchaser obtaining a loan, failure to obtain the loan renders the contract null and void. Mullenger v. Clause, 178 N.W.2d 420, 426-29 (Iowa 1970); Kruger v. Soreide, 246 N.W.2d 764, 769 (N.D.1976). This is precisely what has happened in the present case. Paragraph 2......
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