Parkhurst v. White

• Decision Date: 13 November 1962
• Docket Number: No. 50717,50717
• Citation: 254 Iowa 477,118 N.W.2d 47
• Parties: Vivian PARKHURST, Appellant, v. Albert S. WHITE, Floyd Irons, Margaret Jones and Arthur Jones, Appellees.
• Court: Iowa Supreme Court

Page 47

118 N.W.2d 47

254 Iowa 477

Vivian PARKHURST, Appellant, v. Albert S. WHITE, Floyd Irons, Margaret Jones and Arthur Jones, Appellees.

No. 50717.

Supreme Court of Iowa.

Nov. 13, 1962.

Holliday, Miller & Stewart, Des Moines, for appellant.

Colavecchio & McKeon, Des Moines, for appellees Margaret Jones and Arthur Jones.

Herrick, Langdon, Sandblom & Belin, Des Moines, for appellee Albert S. white.

Bannister, Carpenter, Ahlers & Cooney, Des Moines, for appellee Floyd Irons.

LARSON, Justice.

Pursuant to filing her petition in law demanding judgment for damages in the sum of $35,000.00 as a result of successive collisions between defendants' vehicles and one driven by plaintiff on December 15, 1959, at a street intersection in the city of Des Moines, Iowa, notices were served upon three of the defendants on the 14th of December, 1961, and upon the other one on December 15, 1961. All defendants appeared specially for the purpose of contesting the jurisdiction of the court alleging that no valid original notice had ever been served upon them, and that a purported notice served upon them was not sufficient under the provisions of Rule 50 of the Rules of Civil Procedure, 58 I.C.A. The trial court sustained the special appearances of all defendants and plaintiff appeals. We affirm that decision.

The question presented is whether the original notices served upon defendants were fatally defective, or were so defective that they did not confer jurisdiction upon the court. It, therefore, seems desirable to set out here the pertinent part of the notices served:

'You are hereby notified that the Petition of the plaintiff in the above entitled action is now on file in the office of the Clerk of the District Court of Iowa in and for Polk County, claiming judgment against the defendants, and each of them, as a result of an accident, which occurred at E. 28th and Frederick M. Hubbell Avenue, Des Moines, Iowa, on December 15, 1959, resulting in injuries to the plaintiff along with severe physical and mental pain, suffering and anguish, which is permanent and lasting; for necessary hospital, doctor, X-ray, therapeutics and other medical expenses for the treatment of said injuries, and future hospital, doctor, X-rays, therapeutics, and medical expenses; that plaintiff relies upon the doctrine of res ipsa loquitur.

'In Count II the plaintiff demands judgment against the defendants, and each of them, for injuries and resulting damage, which were the result of the negligence of the defendants, and each of them, in the operation of their respective automobiles at the time and place of said accident.

'For further particulars, see copy of petition, which is now on file.

'You are further notified to appear before said Court, at Des Moines in Polk County, Iowa, within 20 days after the service of this notice upon you, and that unless you so appear your default will be entered and judgment or decree rendered against you for the relief demanded in the Petition.' (Duly signed)

In their special appearances defendants charged, in substance, (1) that no valid notice had been served upon them, and (2) that the purported notice served on them was invalid and insufficient to confer jurisdiction of the court over them because (a) no copy of the petition was attached to the original notice, (b) the notice did not contain a general statement of the cause or causes of action as required by the provisions of Rule 50, R.C.P., and (c) the relief demanded appeared to be for money damages, but did not contain a statement of the amount thereof, as is expressly required by Rule 50, R.C.P.

Rule 50, Rules of Civil Procedure, Code of Iowa 1958, now 1962, 58 I.C.A. provides:

'50. 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 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.)

I. The requirement of Rule 50 which we have emphasized are mandatory. Their apparent intent and purpose is to fully inform the defendant of the nature of the action taken against him and the relief demanded, including the amount if money damages are claimed. These rules have the force and effect of statutes. Summerlott v. Goodyear Tire & Rubber Co., Iowa, 111 N.W.2d 251, 253; Halverson v. Hageman, 249 Iowa 1381, 1388, 92 N.W.2d 569, 574.

There can be little question as to what is required in the notice. The words used are abundantly clear. Among other things, the defendants are to be advised as to the amount of money claimed by plaintiff by way of damages. Appellees do not argue the question as to the sufficiency of the general statement of the cause, and we consider it waived. Rule 344(a)(4) (Third), R.C.P.; Anderson v. Hadley, 245 Iowa 550, 63 N.W.2d 234. Appellees do maintain that the requirement that plaintiff inform them in the notice as to the amount of money demanded has substance and is not of a formal or technical nature. Appellant argues that the failure to state the amount claimed in money is a mere irregularity and that, unless it appears defendants were deceived or misled by this failure, the defect was not substantial nor fatal to the court's jurisdiction in the matter.

II. Under our earlier decisions a strict, in fact a literal, compliance with the statute on notice was required, and any departure from the requirements was fatal. But as pointed out by the appellant and by the court in Jacobson v. Leap, 249 Iowa 1036, 1040, 88 N.W.2d 919, 920, 921, we have in our more recent decisions adopted a rule of liberal construction to avoid defeating an action because of technical and formal defects, which could not reasonably have misled defendant. Krueger v. Lynch, 242 Iowa 772, 48 N.W.2d 266. It, therefore, seems necessary to classify various defects appearing in such notices as mere irregularities or as substantial defects which are fatal to the jurisdiction of the court. This we have done. Summerlott v. Goodyear Tire & Rubber Co., supra, and cases cited therein. In the Krueger v. Lynch case, supra, we recognized the limits of liberality and quoted with approval from Walters v. Blake, 100 Iowa 521, 522, 69 N.W. 879, 880, to the effect that when 'The language * * * is so plain that discussion tends to obscure, rather than to elucidate, its meaning,' no construction problem appears.

The distinction apparent from our past decisions is that mere irregularities which relate principally to the form of the notice or to technical or clerical errors, and which do not deceive or mislead the defendant, will not be found fatal to the jurisdiction of the court, but those amounting to a substantial departure from the substance requirements of the rule would affect the validity of the notice. Thus our inquiry here is whether this defect is a mere irregularity, as plaintiff claims, or a substantial or vital defect as defendants claim. As bearing on this problem, see Krueger v. Lynch, supra; Rhodes v. Oxley, 212 Iowa 1018, 235 N.W. 919; Farley v. Carter, 222 Iowa 92, 269 N.W. 34; Jacobson v. Leap, supra.

It is quite true irregularities in a notice will be examined to see whether defendants have been prejudiced before validity is decided. State ex rel. Hanrahan v. Miller, 250 Iowa 1358, 1368, 96 N.W.2d 474. Even this departure from the old rule has caused considerable confusion as to when a notice will or will not be found fatally defective. As most of the cases previously considered by us involved a subsequent or collateral attack on judgments obtained, it is apparent we were reluctant to set them aside, especially when the defect was not serious and no prejudice appeared. State ex rel. Hanrahan v. Miller, supra, and citations.

However liberal we have been as to mere irregularities, we still have not departed from the view that substantial defects in the vital requirements are fatal to the court's jurisdiction, regardless of prejudice. Of course in such instances prejudice is presumed. Thus if the defect here was substantial, and we think it was, the question of actual prejudice does not become controlling.

III. The requisites of process are matters of statutory...