Tice v. Wilmington Chemical Corp.

• Decision Date: 05 April 1966
• Docket Number: No. 51910,51910
• Court: Iowa Supreme Court
• Parties: Harold J. TICE, as Executor of the Estate of Gertrude M. Tice, Deceased, Appellee, v. WILMINGTON CHEMICAL CORPORATION, Appellant, and Joy & Johnson Auction Company, Leon E. Joy and Howard Johnson, Defendants.

Page 616

141 N.W.2d 616

259 Iowa 27

Harold J. TICE, as Executor of the Estate of Gertrude M. Tice, Deceased, Appellee, v. WILMINGTON CHEMICAL CORPORATION, Appellant and Joy & Johnson Auction Company, Leon E. Joy and Howard Johnson, Defendants.

No. 51910.

Supreme Court of Iowa.

April 5, 1966.

Frank W. Davis and Frank W. Davis, Jr., Des Moines, for appellant.

Cal A. Smedal and James A. Brewer, Ames, for appellee.

RAWLINGS, Justice.

This case comes before us on a permitted appeal from an order of the trial court overruling a special appearance filed on behalf of defendant Wilmington Chemical Corporation, hereafter sometimes referred to as defendant.

By his petition plaintiff alleges substantially as follows: He is executor of the estate of his wife; defendant is an Illinois corporation never qualified to do business as such in Iowa; defendant engaged in manufacturing, producing, selling and distributing a water repellent product, hereafter sometimes referred to as the solution, part of which was purchased for resale in this state by other parties defendant who are Iowa residents; some of this solution was purchased by plaintiff's decedent and on September 21, 1963, while she was using the solution it exploded causing her death.

Division I of the petition asserts breach of implied warranty, Division II breach of express warranty, and Division III specific negligence.

By its amended and substituted special appearance and supplementary affidavit, defendant contends plaintiff attempted to effect process upon it pursuant to the provisions of section 496A.20 and 617.3, Code of Iowa; it is an Illinois corporation never having qualified to do business in Iowa; the solution was not manufactured, packaged or warehoused by defendant, being custom manufactured, packaged, warehoused and shipped for defendant on purchase orders received by and subject to approval of defendant; it transacted business only with independent contractors, sometimes referred to as manufacturer's representatives; process under chapter 496A, Code of Iowa, did not serve to vest requisite jurisdiction in the trial court; section 617.3, Code, 1958, as amended by chapter 287, Laws of the Fifty-Ninth General Assembly, was unconstitutional; Code section 617.3 as amended by chapter 325, Laws of the Sixtieth General Assembly violates section 1, Amendment 14, United States Constitution, and section 9, Article I of the Iowa Constitution, and in any event cannot operate retrospectively.

Apparently no independent evidence was presented by either party.

The trial court overruled defendant's special appearance and with our consent it appealed.

I. Defendant first questions the order of the trial court because there was no separate ruling on each and every ground asserted in the special appearance.

Rule 118, R.C.P., provides: 'A motion, or other matter involving separate grounds or parts, shall be disposed of by separate ruling on each and not sustained generally.'

For good and self-evident reasons a ruling on each ground or part of a motion is looked upon with favor.

However, we have held a violation of this rule does not constitute prejudicial error absent some compelling cause to hold otherwise. Lockwood v. Wiltgen, 251 Iowa 484, 487, 101 N.W.2d 724; Pansegrau v. Collins, 247 Iowa 632, 636, 75 N.W.2d 249; and Jensma v. Allen, 248 Iowa 556, 560, 81 N.W.2d 476. See also Davis v. Mater, 248 Iowa 1, 79 N.W.2d 400, and Hull v. Bishop-Stoddard Cafeteria, 238 Iowa 650, 26 N.W.2d 429.

There is no basis upon which to conclude defendant was prejudiced by the ruling as made. We find no good cause to reverse by reason of the challenged form of order entered by the trial court.

II. Defendant also contends plaintiff did not establish sufficient facts to sustain jurisdiction of the court under sections 496A.103 and 496A.120, Code, 1962.

There is nothing which discloses plaintiff was required to so prove. In fact, there is no indication plaintiff ever pretended to stand upon these statutory provisions, and defendant failed to establish their relevancy or materiality.

Section 496A.103 relates to the securing of authority by a foreign corporation to transact business in this state and section 496A.120 is nothing more nor less than a penalty statute as to foreign corporations transacting or attempting to transact business in Iowa.

This phase of the case was fully explored in Great Atlantic & Pacific Tea Co. v. Hill-Dodge Banking Co., 255 Iowa 272, 278, 122 N.W.2d 337.

We there concluded section 617.3 as amended establishes a new basis for jurisdiction over a foreign corporation.

Little or nothing is to be gained by here further belaboring the matter.

III. We turn now to the specifics involved in defendant's challenge to the jurisdiction of the court.

A special appearance has for its purpose the interposing of objection to jurisdiction, such being the sole question placed before the court by such a restricted appearance. Rules 66 and 104(a), R.C.P.; 6 C.J.S. Appearances § 22b, page 66; and 5 Am.Jur.2d, Appearance, section 3, page 480.

In passing upon a special appearance the courts of this state accept the allegations of plaintiff's petition as true. Great Atlantic & Pacific Tea Co. v. Hill-Dodge Banking Co., supra, 255 Iowa at 279, 122 N.W.2d at 341.

However, we have also held verified affidavits may be submitted supporting or in opposition to a special appearance. Rules 80(b) and 116, R.C.P.; State v. Bitter Root Valley Irr. Co., 185 Iowa 60, 66, 169 N.W. 776; and 2 Iowa Law Bulletin 127. And, when affidavits are so filed the contents stand as a verity unless controverted. Stites v. Des Moines Transit Co., 249 Iowa 185, 190, 85 N.W.2d 905, and National Clay Products Co. v. District Court, 214 Iowa 960, 970, 243 N.W. 727.

In the case now before us defendant appended a verified affidavit to its special appearance. As aforesaid plaintiff filed no counter-affidavit and no hearing was had upon the factual situation. We conclude the trial court determined the jurisdictional issue presented upon the facts as disclosed by plaintiff's petition and defendant's supportive affidavit.

IV. This court has previously declared a plaintiff faced with a jurisdictional challenge has the burden to establish facts necessary to show the trial court had requisite jurisdiction over the contesting defendant. Spencer Concrete Products Co. v. City of Spencer, 254 Iowa 87, 90, 116 N.W.2d 455.

But we have also held a defendant interposing a plea to the jurisdiction of a court by special appearance has the burden to sustain that plea. Flinn v. Western Mut. Life Ass'n, 187 Iowa 507, 510, 171 N.W. 711, and Rule 344(f) 5, R.C.P.

Defendant does not here contend plaintiff failed to comply with any procedural requirements in the service of notice upon it. In any event no defect or omission in effecting process upon defendant was ever called to the attention of the trial court, and we have repeatedly held an issue or contention not raised in the trial court will not be considered by us on appeal. Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469.

V. And, since a hearing had upon a special appearance is a special proceeding not triable in equity, it is not reviewable de novo on appeal. Spencer Concrete Products Co. v. City of Spencer, supra.

Also, if different inferences may be drawn from undisputed facts, the interpretation given them by the trial court must be accepted by us. Rule 344(f) 1, R.C.P and Johnson v. Aeroil Products Co., 255 Iowa 931, 933, 124 N.W.2d 425.

Finally, in this same vein we entertain defendant's appeal upon assigned errors only, the findings of the trial court having the force and effect of a jury verdict. Schultz v. Board of Adjustment, Iowa, 139 N.W.2d 448, 450.

This then leads us to conclude the trial court found plaintiff effected service of notice as by law provided, that the burden was then upon defendant to establish absence of jurisdiction as alleged by it, and this it failed to do.

VI. As previously stated defendant does not directly contest the mechanics adopted by plaintiff in effecting service of notice. Rather it assails constitutionality of the foundational statute under which process is claimed to have been had, and its applicability to this case.

Upon the basis of assigned errors it would appear defendant, by its special appearance, takes the following position: (1) section 617.3, Code, 1958, as amended, is unconstitutional; (2) these legislative enactments could not in any event be of benefit to plaintiff since their retroactive application is prohibited; and (3) these legislative acts cannot be applied under the existing factual situation to a claimed breach of warranty, express or implied, or to alleged negligence on the part of defendant.

We have several times held that where, as here, a defendant challenges the constitutionality of legislative enactments under and by virtue of which process has been effected, the burden so assumed is a heavy one. Powers v. McCullough, Iowa, 140 N.W.2d 378, filed February 8, 1966, and State ex rel. Cairy v. Iowa Co-op Ass'n, 250 Iowa 839, 843, 95 N.W.2d 441.

Stated otherwise, a contested act of the legislature stands unless the challenging party shows beyond a reasonable doubt it violates some given constitutional provision. Bulova Watch Co. v. Robinson Wholesale Co., 252 Iowa 740, 746, 108 N.W.2d 365, and Diamond Auto Sales, Inc. v. Erbe, 251 Iowa 1330, 1335, 105 N.W.2d 650.

VII. By its special appearance defendant subjects the amendments to section 617.3, Code, 1958, to close scrutiny under the spotlight of both our Federal and State Constitutions.

This act as originally set forth in the 1958 Code, made provision for service of notice upon any corporation or person owning or operating a transportation, telegraph, telephone or express line, or any foreign corporation, having an agent in Iowa.

It clearly complied with the due process mandate. Elk River Coal & Lumber Co. v. Funk, 222...