Pendy v. Cole

• Decision Date: 18 November 1930
• Docket Number: 40531
• Citation: 233 N.W. 47,211 Iowa 199
• Parties: J. W. PENDY, Administrator, Appellant, v. ROBERT COLE, Appellee
• Court: Iowa Supreme Court

233 N.W. 47

211 Iowa 199

J. W. PENDY, Administrator, Appellant, v. ROBERT COLE, Appellee

No. 40531

Supreme Court of Iowa, Des Moines

November 18, 1930

Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.

Plaintiff filed petition in the district court for damages for the negligent acts of the defendant, causing the death of plaintiff's intestate. The case being docketed in the district court, the purported defendant made special appearance thereto, for the purpose of objecting to the jurisdiction of the court, such jurisdiction being challenged on the ground that no original notice had ever been served upon the defendant. The district court sustained such challenge to the jurisdiction, and dismissed the case as to the defendant. The plaintiff has appealed.

Affirmed.

Parsons & Mills, for appellant.

Lehmann Hurlburt & Hossfeld, for appellee.

EVANS J. MORLING, C. J., and FAVILLE, KINDIG, and GRIMM, JJ concur.

OPINION

EVANS, J.

The defendant entered his special appearance in writing, and stated therein the grounds of his challenge. These grounds were, in substance: (1) That no original notice was ever served upon the defendant; (2) that certain papers actually served upon the defendant did not constitute an original notice, within the meaning of the statute; (3) that there were delivered to or served upon the defendant by some person two certain papers successively, said papers being marked, respectively, as Exhibits A and B, and being set forth literally in the special appearance, as follows:

"Exhibit A.

"You are hereby notified that on or before the 20th day of June, 1929, the petition of the plaintiff in the above-entitled cause will be on file in the office of the clerk of the district court of the state of Iowa, in and for Polk County, Iowa, claiming of you the sum of fifty thousand dollars ($ 50,000.00) for the wrongful death of Robert S. Carlisle by the negligent driving of a car.

"For further particulars see petition, and unless you appear thereto and defend before noon of the second day of the next term, being the July term of said court, which will commence at Des Moines, Polk County, Iowa, on the 1st day of June, 1929, default will be entered against you and judgment and decree rendered thereon.

"Dated this 20th day of June, 1929."

"Exhibit B.

"You are hereby notified that on or before the 1st day of June, 1929, the petition of the plaintiff in the above-entitled cause will be on file in the office of the clerk of the district court of the state of Iowa, in and for Polk County, Iowa, claiming of you the sum of fifty thousand dollars for the wrongful death of Samuel S. Carlisle by the negligent driving of a car.

"For further particulars see petition, and unless you appear thereto and defend before noon of the second day of the next term being the July term of said court, which will commence at Des Moines, Polk County, Iowa, on the 1st day of June, 1929, default will be entered against you and judgment and decree rendered thereon.

"Dated this 23rd day of May, 1929."

Exhibit A mistakenly stated that the July term, to which the defendant was summoned, would begin on the first day of June, 1929. It also purported to be dated on the 20th day of June, 1929. It also mistakenly stated the name of the injured party as "Robert S. Carlisle." Exhibit B also mistakenly stated that the July term would begin on the first day of June.

Referring to this part of the record, the appellant states in his brief:

"That the defendant was served with the notice set out in the petition on page 5, line 33, to page 6, line 13, notifying that the petition would be on file on or before the 20th of June, 1929, and reciting that, unless the defendant appeared before noon of the second day of the next term, being the September term of said court, which will commence on the 2nd day of the September term, default would be entered against you," etc.

This statement in the brief tends to complicate, rather than explain, the record, and leaves us quite unable to determine whether the correct designation of the term of court should have been June, July, or September. We are disposed to assume that the statement in the brief is an error, and that the term to which the plaintiff sought the appearance of the defendant was the July term. The district court...