Schulte v. Great Lakes Forwarding Corp.
| Decision Date | 02 April 1940 |
| Docket Number | 45118. |
| Citation | 291 N.W. 158,228 Iowa 1012 |
| Parties | SCHULTE v. GREAT LAKES FORWARDING CORPORATION et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Clayton County; T. H. Goheen, Judge.
Action at law to recover damages for alleged wrongful death. Originally, there were two defendants, the owner of the truck involved in the accident, and its insurance carrier. The insurance company filed a special appearance challenging the court's jurisdiction of the subject matter of the litigation as to it. The cause was dismissed by plaintiff as to the owner of the truck. The special appearance was overruled. The defendant insurance company appeals.
Reversed.
Kenline, Roedell & Hoffman, of Dubuque, for appellant.
D. D Murphy & Son, of Elkader, for appellees.
This appeal presents only the question of jurisdiction of the district court over the subject matter of the litigation as to the appellant, Policyholders Mutual Casualty Company. The question is presented on an appeal from a ruling on a special appearance. The facts appear solely in the pleadings and supporting affidavits.
On April 20, 1936, the plaintiff filed an unverified petition at law naming two defendants, the Great Lakes Forwarding Corporation and the Policyholders Mutual Casualty Company. The action was for damages for alleged wrongful death of the plaintiff's decedent. The petition is in two counts. Count I asserts the following facts: Plaintiff is the administrator of the estate of Ethel Kann, deceased. The Great Lakes Forwarding Corporation is engaged in the transportation of freight, particularly what is known as automobile carrier units, with its principal office in Chicago, Illinois; the state of its incorporation is unknown it is operating under and by virtue of a permit of the railroad commission within the State of Iowa; service cannot be obtained on it within the State of Iowa. The Policyholders Mutual Casualty Company is an insurance company with its principal place of business at Des Moines, Iowa; it issued a policy to the Great Lakes Forwarding Corporation, a copy of which policy is attached to the petition; the policy purports to afford the coverage required under the provisions of Chapter 252-A1 or 252-C1 of the Code of Iowa 1935, and is limited to the State of Iowa. On October 21, 1937, there was a collision between a motor carrier of the defendant, Great Lakes Forwarding Corporation, and a truck in which the decedent was riding; decedent was injured and died from such injuries; the injuries were caused by the negligence of said defendants; the decedent was free from contributory negligence. In Count I, negligence on the part of the Great Lakes Forwarding Corporation was asserted under the doctrine res ipsa loquitur. Count II of the petition incorporated Count I and undertook to assert in addition thereto specific allegations of negligence. Recovery was demanded in the sum of $7,500.
On April 21, 1938, an original notice was filed showing service of the same on the Policyholders Mutual Casualty Company by serving its assistant secretary at Des Moines, Iowa, on April 13, 1938. Service upon the Great Lakes Forwarding Corporation was shown to have been made by filing a copy of the notice with the commissioner of the motor vehicle department on April 11, 1938, which filing was acknowledged by the commissioner. There was also filed a copy of a letter to the Great Lakes Forwarding Company dated April 12, 1938, and a return receipt acknowledging receipt of the letter on April 17, 1938, but there was no affidavit as to the mailing of the letter.
On May 2, 1938, the Policyholders Mutual Casualty Company filed a special appearance asserting that, under its policy, suit could not be instituted against it until judgment was secured against its assured, and the petition, showing on its face that no such judgment had been secured, failed to state a cause of action against such defendant so that the court was without jurisdiction.
On June 3, 1938, the Great Lakes Forwarding Corporation filed a petition with the necessary notice and bond for the removal of the case to the federal court. On June 22, 1938, the plaintiff filed a resistance and objections to the petition for removal. On June 27, 1938, the court entered an order denying removal of the cause. On the next day, the two defendants filed separate special appearances, each asserting that the court was without jurisdiction because of the proceedings to remove the cause to the federal court.
Notwithstanding the order denying removal of the cause, the necessary transcript was filed in the federal court. On August 9, 1938, plaintiff's attorney executed an affidavit stating the facts in reference to the mailing of the original notice to the Great Lakes Forwarding Corporation, and a certificate was filed in the federal court showing the filing of such affidavit.
The Great Lakes Forwarding Corporation filed a special appearance in the federal court challenging the sufficiency of the return of service of the original notice, and the plaintiff filed a motion to remand. On September 22, 1938, the federal court entered an order overruling the special appearance, based on the alleged defective service, and also overruling the motion to remand, holding that there was a separable controversy asserted in the petition as against the Great Lakes Forwarding Corporation, and that the court had jurisdiction thereof.
On October 17, 1938, the action was dismissed as to the Great Lakes Forwarding Corporation, both in the state court and the federal court, and the federal court on its own motion remanded the cause to the state court because there was no diversity of citizenship then existing.
On February 14, 1939, the Policyholders Mutual Casualty Company, the sole remaining defendant, filed an amendment to its special appearance, asserting various matters. One ground was that the statement in the petition that plaintiff is unable to obtain service upon the Great Lakes Forwarding Corporation within the State of Iowa is a mere conclusion and the fact is that, when the action was commenced, service was made upon the Great Lakes Forwarding Corporation by following the procedure for service upon a non-resident of Iowa; also the Great Lakes Forwarding Corporation in fact did have and has since continued to have a resident agent for service of process in Iowa in all matters growing out of the operation by it of trucks in Iowa, service of original notice in any action can be made upon said corporation in Iowa, and, accordingly, the defendant cannot be subjected to jurisdiction by the manner and means and at the time attempted by plaintiff herein.
The amendment to special appearance was supported by the affidavit of R. P. Roedell, asserting that, on and subsequent to October 21, 1937, the Great Lakes Forwarding Corporation had a resident agent in Iowa for the service of process in all matters growing out of the operation by it of trucks in Iowa, and service of process could have been obtained by plaintiff on April 13, 1938, and at any time thereafter on the Great Lakes Forwarding Corporation in Iowa by service upon such resident agent.
Plaintiff filed no resistance to the special appearance. On March 6, 1939, the court overruled the special appearance. The defendant, Policyholders Mutual Casualty Company, perfected its appeal from such ruling and secured a stay of proceedings.
As heretofore stated, there is no question but that the court had jurisdiction of the appellant herein. However, for the court to have jurisdiction to decide a controversy, it is necessary that it not only have jurisdiction of the parties to the controversy, but also that it have jurisdiction of...
To continue reading
Request your trial