Read v. Rousch
| Decision Date | 29 September 1920 |
| Docket Number | No. 33402.,33402. |
| Citation | 189 Iowa 695,179 N.W. 84 |
| Parties | READ v. ROUSCH. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Page County; E. B. Woodruff, Judge.
Action at law to recover judgment upon certain promissory notes, payment of which it is alleged was for a valuable consideration, assumed by the defendant. Notice was served upon the defendant in Page county, Iowa, on September 8, 1919, to the effect that a petition demanding such recovery would be filed in the office of the clerk of the district court of said county on or before October 1, 1919. The petition was not in fact filed until October 2, 1919.
On October 21, 1919, the defendant by counsel filed a paper entitled “Special Appearance of Defendant,” and stating therein that such appearance was for the sole purpose of denying the jurisdiction of the trial court to entertain the action. The first reason or ground stated for such objection is to the effect that defendant was then and still is a nonresident of Iowa, having his domicile and residence in the state of Missouri, and that the original notice in the case was served upon him in the courthouse of Page county, Iowa, where he was in attendance upon the district court of this state to testify as a witness in obedience to a subpœna issued in an action then and there pending between third parties, by reason of all which he was exempt from liability to be sued in the courts of this state. In the same paper or pleading, defendant further states that plaintiff's petition was not then filed in the court below, nor was it filed at any time until after the expiration of the time fixed therefor in the original notice. Because of the matters so stated he asked that the action be dismissed.
Further stating his objections to the authority of the trial court to hold him liable to answer the plaintiff's claim, defendant made use of the following language, to wit:
“(6 1/2) That the same identical cause of action is now pending in the circuit court of Clay county, Mo., said suit therein being entitled, ‘Henry Read, Trustee, Plaintiff, v. William E. Roush, Defendant,’ a copy of the amended petition filed therein, marked ‘Exhibit E,’ being duly certified to, is attached hereto and made a part hereof, together with the certificate attached thereto.
(7) That this court is without jurisdiction of said cause of action by reason of the matters above stated and complained of, and as further set forth in the affidavits attached hereto, in support thereof, and by reason of the matters referred to herein.
(8) That defendant objects to and complains that this court does not have jurisdiction of this cause of action, by reason of all of his objections and complaints attaches the annexed affidavits, and also refers to the original notice and return of service thereof, and the notation as to the time of filing of the said petition and copy of plaintiff in said action as noted thereon by the clerk of said court, and the entry as to the time of filing said petition and copy in Judgment and Appearance Docket X at page 7493 thereof, and also to the original subpœna served upon the said William E. Roush in said case of Grant Taylor, Plaintiff, v. A. T. Clark, Defendant, and to the return of service thereof, all as filed in said case of Grant Taylor, Plaintiff, v. A. T. Clark, Defendant, in the office of the clerk of said district court of Page county, Iowa. Wherefore defendant asks that the court dismiss said cause of action.”
On consideration of the matters so shown and conceded, the trial court sustained the defendant's objections, dismissed the action, and taxed the costs to the plaintiff. From this ruling and order the plaintiff appeals. Affirmed.Tinley, Mitchell, Pryor & Ross, of Council Bluffs, for appellant.
Shinabargar, Blagg & Ellison, of Maryville, Mo., for appellee.
The question to be decided is very much simplified by the appellant's admission of the fact that defendant was a nonresident of Iowa, at the time original notice was served upon him, and was then within the state of Iowa in attendance upon court under subpœna to testify as a witness in another cause, and by the further concession that the petition in the present case was not filed within the time stated in the notice. Stated in the language of counsel for the appellant, the sole question now before the court is this: “Is the pleading which the appellee designated ‘Special Appearance of Defendant’ a special appearance or is it an answer or general appearance?” It is appellant'scontention that, while the defendant's claim of immunity from service of process in this state under the circumstances named may be conceded, and while the failure to file the petition within the time stated in the notice may have entitled defendant to have the action dismissed, yet his allegation of another action, already pending in another state, involving a determination of the same alleged cause of action, is in the nature of a plea to the merits of plaintiff's claim, and operates as a general appearance to the action and consent to the jurisdiction of the court in which such action is brought.
I. While the precedents dealing with cases of this kind are quite numerous, and the holdings therein are involved in no little confusion, the best-approved doctrine supports the reasonable proposition that a defendant cannot be heard to attack the jurisdiction of a court in which he is sued and at the same time invoke such jurisdiction affirmatively in his own behalf.
Under our statute, a defendant may make a special appearance to an action against him for the sole purpose of attacking the jurisdiction of the court. Such special appearance must be announced at the time it is made. It limits the objection to the consideration of jurisdictional matters only, and gives him no right to plead to the merits of the case. Code, § 3541.
The defendant in this case unquestionably attempted to exercise this statutory privilege, and confessedly did make a showing of at least one sufficient ground of attack upon the court's jurisdiction over his person. The attempted service upon him of the original notice was a clear violation of his right to immunity from such process. He met the attempt at the threshold, in the manner prescribed by the statute, by announcing that he appeared for the sole purpose of attacking the jurisdiction of the court. Such being the declared intent and purpose of his appearance, the paper filed by him should be given interpretation and construction consistent therewith, if it can fairly be done. True, if when so read, it pleads matter which in fairness must be deemed purely defensive or as calling for the exercise of the court's judicial authority to pass upon any question except its own jurisdiction, then the fact that the paper is entitled a “Special Appearance,” instead of an answer or other pleading, is immaterial, and ordinarily the appearance will be treated as general. It seems to us quite clear in the present case that the defendant and his counsel made a good-faith attempt to confine the attention of the trial court to the single question of jurisdiction. It may be that the allegation of the pendency of another suit involving the same subject-matter, would, in an answer, amount to a plea in abatement, but it does not necessarily follow that the inclusion of such allegation in a statement of the defendant's objections to the court's jurisdiction has the effect to convert such objection into a plea to the merits of the plaintiff's demand for judgment. And this is especially true where no petition had been filed to which he could be held to answer or plead. To say the least, the matter so included in the objection is not inconsistent with the professed and declared “sole purpose” of the defendant in attacking the court's jurisdiction. The pendency in another state of another action between the parties involving the same subject-matter of controversy was...
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