Nw. Cas. & Sur. Co. v. Conaway
| Decision Date | 14 April 1930 |
| Docket Number | No. 40103.,40103. |
| Citation | 210 Iowa 126,230 N.W. 548 |
| Court | Iowa Supreme Court |
| Parties | NORTHWESTERN CASUALTY & SURETY CO. v. CONAWAY. |
OPINION TEXT STARTS HERE
Appeal from District Court, Marshall County; Clarence Nichols, Judge.
Action at law upon a judgment rendered against the defendant in Ramsey County, Minn. A jury was waived, and the cause tried to the court. Judgment for plaintiff, and the defendant appeals.
Affirmed.C. H. E. Boardman and H. G. Cartwright, both of Marshalltown, for appellant.
E. N. Farber, of Marshalltown, and O'Brien, Horn & Stringer, of St. Paul, Minn., for appellee.
The appellant was formerly a colonel in the United States Army commanding the 347th Medical Regiment allocated to the state of Iowa, of which he was, and is, a resident. Immediately prior to July 3, 1927, he was on the reserve list, without salary, but subject to call by the government. On or about that date, appellant was ordered by the military department of the United States to take his troops to Ft. Snelling, Minn., for a training period of fifteen days. While at Ft. Snelling in charge of his troops and in the government service, as already stated, he was served with summons notifying him of the commencement of an action by the Northwestern Casualty & Surety Company against him in the district court of Ramsey county, Minn. In due time, appellant appeared in the Minnesota court and filed a motion, supported by an affidavit reciting the facts above stated, to quash the summons upon the grounds that, at the time of the service thereof, he was on the military reservation of the United States and not within the jurisdiction of the courts of Minnesota, and that his presence within the state was involuntary and solely as an officer in the United States Army and in obedience to the command of his superior, and that while in such capacity he was privileged from the service of process in the state of Minnesota. The motion to quash the summons was overruled by the court, and judgment entered against him as demanded. No appeal was taken from such judgment nor was the ruling of the court upon the motion to quash the summons assailed in any way.
[1] There is no controverted question of fact involved on this appeal. The sole question is, Did the Minnesota court acquire jurisdiction to enter a personal judgment in that state against appellant? The rule that nonresident suitors and witnesses in attendance upon a trial in a foreign jurisdiction are, for a reasonable time, immune from the service of process upon them therein is of general application. Murray v. Wilcox, 122 Iowa, 188, 97 N. W. 1087, 64 L. R. A. 534, 101 Am. St. Rep. 263;Stewart v. Ramsey, 242 U. S. 128, 37 S. Ct. 44, 46, 61 L. Ed. 192;Phipps v. Clev. Ref. Co., 261 U. S. 449, 43 S. Ct. 418, 67 L. Ed. 739;State v. District Court, 34 Wyo. 288, 243 P. 123;Kelly v. Pennington, 78 Colo. 482, 242 P. 681, 45 A. L. R. 339;Prescott v. Prescott, 95 N. J. Eq. 173, 122 A. 611;Filer v. McCornick (D. C.) 260 F. 309;Hammons v. Superior Court, 63 Cal. App. 700, 219 P. 1037;Bolz v. Crone, 64 Kan. 570, 67 P. 1108;Kaufman v. Garner (C. C.) 173 F. 550.
This rule, as stated in numerous of the cases cited above, is in reality founded on the necessities of judicial administration which, as said in Stewart v. Ramsey, supra,
[2][3][4] Immunity from process in such cases may and will be waived if the party entitled thereto fails to appear and move to quash the summons or to proceed otherwise, if required by the rules of practice in such jurisdiction. Murray v. Wilcox, supra; Peters v. League, 13 Md. 58, 71 Am. Dec. 622; Prentis v. Commonwealth, 5 Rand. (Va.) 697, 16 Am. Dec. 782;Gyer's Lessee v. Irwin, 4 Dall. 107, 1 L. Ed. 762; 1 Freeman on Judgments, § 401. Judgments erroneously entered in such cases are not void but voidable. 1 Freeman on Judgments, § 401; Thornton v. American Writing-Machine Co., 83 Ga. 288, 9 S. E. 679, 20 Am. St. Rep. 320;Nelson v. Brigham, 173 Minn. 552, 218 N. W. 101;Longueville v. May, 115 Iowa, 709, 87 N. W. 432. Immunity from process, when accorded to persons engaged in the military service, is based upon grounds of public policy. Dow v. Johnson, 100 U. S. 158, 25 L. Ed. 632;Land Title & Trust Co. v. Rambo, 174 Pa. 566, 34 A. 207.
The question whether appellant was legally entitled to claim immunity from the service of process in the state of Minnesota, while engaged temporarily in the military service, we need not determine. The decision of the Supreme Court of the United States in Dow v. Johnson, 100 U. S. 158, 25 L. Ed. 632, contains an interesting discussion of this question. Immunity in that case was sustained and a judgment, entered by the state court in the state of Louisiana upon summons served upon Gen. Dow while engaged as a general in the Union Army in active military service in the war between the states, was decreed void because of the nature of the recovery sought and the military exigencies then prevalent.
[5][6][7] The Minnesota court clearly had jurisdiction to pass upon the motion to quash the summons and, in doing so, must necessarily determine whether appellant was, or was not, immune from the service of process in that state. The filing of the motion to quash necessarily invoked the jurisdiction of the court for that purpose. That was the question first to be litigated in that court. Even if it be assumed that the decision on the motion to quash was erroneous, it cannot be said that it was rendered without jurisdiction. Whether the judgment...
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