Raher v. Raher

• Decision Date: 19 January 1911
• Citation: 129 N.W. 494,150 Iowa 511
• Parties: RAHER v. RAHER ET AL.
• Court: Iowa Supreme Court

150 Iowa 511

129 N.W. 494

RAHER

v.RAHER ET AL.

Supreme Court of Iowa.

Jan. 19, 1911.

Appeal from District Court, Iowa County; R. P. Howell, Judge.

Action in equity to set aside a judgment rendered in a proceeding instituted by the defendant, Edward Raher, to have this plaintiff adjudged to be of unsound mind and to have a guardian appointed for him. In such proceeding there was a judgment in favor of the plaintiff therein, and defendant F. W. Mullin was appointed guardian. The lower court refused to set aside the judgment, and plaintiff appeals. Reversed.

Deemer, J., and Sherwin, C. J., dissenting.

Yoss & Wallace, for appellant.

Dower & Murphy, for appellee.

McCLAIN, J.

The special proceeding in which this plaintiff was adjudged to be of unsound mind and Mullin was appointed guardian was instituted in the district court of Iowa county, and personal service was made upon this plaintiff while he was in fact within the limits of the state of South Dakota.The petition in such proceeding did not allege the place of residence of the defendant therein, but it is now stipulated that his legal residence was in Iowa county. Adopting a different order of discussion from that followed in appellant's brief, we shall consider the three propositions relied upon for appellant to show that the judgment in the guardianship proceeding was void for want of jurisdiction, and should now be set aside on that ground. These are, first, that John Raher was not an inhabitant of Iowa county when the special proceeding was instituted, and therefore the court had no jurisdiction to adjudicate the question of his mental capacity and appoint a guardian for him; second, that the statutes of the state do not authorize a personal judgment against a defendant personally served with notice and not appearing in the action; and, third, that if such service is authorized as a basis for personal judgment, the statute is in this respect unconstitutional, as authorizing the defendant in such proceeding thus served to be deprived of liberty and property without due process of law.

1. The petition in the proceeding for guardianship did not allege that John Raher was an inhabitant of Iowa county, and it is insisted for appellant that such fact was essential to the justification of the court in such proceeding under Code, § 3219, which provides that “when a petition verified by affidavit is presented to the district court that any inhabitant of the county is” a person of unsound mind and the allegations of the petition are satisfactorily proved, the court may appoint a guardian for the property of such person. We do not understand from the language quoted that an allegation in the petition that the defendant is an inhabitant of the county is made essential, but, on the other hand, we reach the conclusion that the fact of residence is the essential thing in this respect. When the petition alleges with reference to a person named that he is of unsound mind, etc., then, as we understand the language of the statute, the court (with the assistance of a jury) is authorized to determine whether the defendant is an inhabitant of the county, and a judgment finding mental incapacity and appointing a guardian presumes a finding that defendant was such inhabitant. But even if this were not so, the judgment in the proceeding against John Raher expressly recited a finding that the court had “jurisdiction of the defendant and the premises,” thus indicating a determination of the court on the evidence not only that such defendant was served with notice, but also that the circumstances necessary to justify the court in proceeding were shown to exist, one of these necessary circumstances being, of course, that defendant was an inhabitant of the county. In the face of this express finding, we would not be justified in holding that a failure to allege the fact in this respect defeated the jurisdiction of the court. In Guthrie v. Guthrie, 84 Iowa, 372, 51 N. W. 13, it was held that in view of the provision now found in Code, § 3220, that all the rules of ordinary actions shall govern in this proceeding so far as applicable, the verification of the petition referred to in the language above quoted was not a jurisdictional matter; and we therefore think that the other averment contemplated by such language, that the defendant is an inhabitant of the county, does not purport to state an essential averment, failure to insert which would deprive the court of justification, but discloses only a fact which must be established in order to justify the court in granting the relief prayed. If the jurisdiction of the court in this respect is to be determined with reference to the facts and not with reference merely to the averment, then it sufficiently appears not merely by presumption, but by express recital, that such fact existed, and there is nothing in this record to indicate the nonexistence of the fact thus recited, for John Raher may well have been an inhabitant of the county, although temporarily outside of the state.

2. A proceeding to secure the appointment of a guardian for one who is of unsound mind is in personam, and personal service, as distinct from service by publication, is essential to give the court jurisdiction. Brown v. Lambe, 119 Iowa, 404, 93 N. W. 486. This proposition is conceded by counsel for appellee, and it is further conceded that there was no appearance by or in behalf of John Raher in the guardianship proceeding, and that if the court had any jurisdiction to declare him of unsound mind and appoint a guardian for his property, such jurisdiction was acquired by a notice personally served upon him in the state of South Dakota. It being stipulated that he had a legal residence in Iowa county, we have presented a question which, in so far as we can discover, is absolutely without precedent in this or any other state of this Union. The first question must be whether such service is authorized by our statute, for, if unauthorized, the court acquired no jurisdiction.

The statutory provisions as to the commencement of ordinary actions are as follows: An action is commenced in a court of record by serving the defendant with an original notice (Code, § 3514) which, so far as personal service is concerned, is to be made by reading the notice to the defendant or offering to do so, etc., and in either case by delivering him personally a copy, or offering to do so (Code, § 3518). It is then provided that if service is made within the state, the return may be proven by the signature of the sheriff or his deputy, of which the court shall take judicial notice, but if made without the state, or by one not such officer within the state, the return must be proven by the affidavit of the person making the same. Code, § 3524. Service by publication is then provided for in various classes of cases, all of which may be properly described as proceedings in rem, unless it be the case of an action “where the defendant being a resident of the state has departed therefrom or from the county of his residence with intent to delay or defraud his creditors, or to avoid the service of a notice, or kept himself concealed therein with like intent.” Code, § 3534. Following other provisions as to service by publication, it is declared that “actual personal service of notice within or without the state supersedes the necessity of publication.” Code, § 3537.

The sections above referred to are all found in the chapter of the Code relating to the “manner of commencing actions,” but in the chapter relating to “trial and judgment” is found the following provision: “No personal judgment shall be rendered against a defendant served by publication only who has not made an appearance; but a personal judgment may be rendered against a defendant, whether he appears or not, who has been served in any mode provided in this Code other than by publication, whether served within or without the state, if such defendant is a resident of the state.” Code, § 3800. We are inclined to think that if it was competent for the Legislature to provide for personal judgment on actual personal service of notice without the state, then it was the intention to authorize a personal judgment against a resident of the state actually served with notice outside the state, for the section last cited evidently has reference to all the methods of service of notice provided for in the chapter relating to the “commencing of actions,” and excludes only those by publication. Actual service outside the state is not declared to be a form of service by publication, but a substitute therefor. In view of the well-recognized rule that personal judgment cannot be rendered on service by publication or upon personal service made upon nonresidents outside of the state, it must have been the legislative thought that it was competent to impose upon residents of the state, though for the time being outside of its territorial limits, the duty upon being personally served with notice to return to make defense in the action in which such service is made, or to make such defense through counsel appearing for the purpose. See note to section 3164, Revision of 1860, where this provision first appears. This conception of a possibility of rendering personal judgment on service had otherwise than within the state is suggested also by the portion of Code, § 3534, above quoted, which seems to authorize personal judgment on service by publication in an action against a resident who had departed from the state with intent to delay or defraud his creditors or to avoid service of a notice.

In Bates v. Chicago & N. W. R. Co., 19 Iowa, 260, it is said with reference to the provision of section 3164 of the Revision of 1860 that “this section does not extend the mode of service, nor add to the cases in which service may be made, either by publication or by service without the state. But it is only when service has been made in a ‘mode in this...