West v. Hawker

• Decision Date: 21 January 1976
• Docket Number: No. 2--56968,2--56968
• Citation: 237 N.W.2d 802
• Parties: Edward WEST, Appellant, v. Willard HAWKER and Erling Hanson et al., Appellees.
• Court: Iowa Supreme Court

Page 802

237 N.W.2d 802

Edward WEST, Appellant, v. Willard HAWKER and Erling Hanson et al., Appellees.

No. 2--56968.

Supreme Court of Iowa.

Jan. 21, 1976.

John M. Bickel, of Shuttleworth & Ingersoll, Cedar Rapids, for appellant.

John Q. Swift, of Swift & Swift, Manchester, for appellees.

Heard by MOORE, C.J., and MASON, LeGRAND, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

We granted this interlocutory appeal to permit plaintiff to challenge a trial court order sustaining special appearances by two of the four defendants in the case. The question presented is whether the original notices served upon these two defendants were sufficient to confer jurisdiction over them under rule 50, Rules of Civil Procedure, as the rule existed on October 3, 1973. The trial court answered the question negatively in sustaining the special appearances upon two separate grounds. We reverse and remand.

This is a negligence action based upon injuries plaintiff Edward West alleges he sustained in a parachute jump during ceremonies at the Manchester municipal airport on October 3, 1971. Plaintiff originally sued the City of Manchester and Manchester Chamber of Commerce in a petition containing three divisions. He alleged the parties contracted with him to make parachute jumps on the occasion involved but were negligent in several respects relating to safety of the landing area. Division I stated his claim against the City of Manchester; division II stated his claim against defendant Chamber of Commerce; and division III stated his claim against both defendants. Those defendants answered. Amendments were subsequently made to the petition and the answers. Plaintiff replied.

Then on October 3, 1973, plaintiff filed with the district court a document title 'AMENDED PETITION', containing three divisions. Division IV purported to state a claim against defendant Willard Hawker on the theory he was an agent of the City and Chamber of Commerce who negligently breached certain ground safety responsibilities during the parachute jumps; division V purported to state a claim against defendant Erling Hanson on the same theory; division VI purported to state a claim against all four defendants, alleging joint and several liability. With this document, plaintiff filed a 'MOTION FOR LEAVE TO AMEND PETITION'. In this motion, as later corrected, he asked leave of court to substitute division VI of the amended petition for division III of the original petition. Plaintiff did not seek or obtain leave of court to file divisions IV and V of the 'AMENDED PETITION'.

Plaintiff caused an original notice to be served on new defendants Hawker and Hanson. These defendants appeared specially, and their special appearances were sustained on two grounds raising the issues which must be decided in this appeal. Defendants City of Manchester and Chamber of Commerce filed separate documents resisting plaintiff's motion for leave to amend his petition. Because the special appearances were sustained, the trial court did not reach the merits of those resistances. Plaintiff's motion for leave to substitute division VI of the amended petition for division III of the original petition was overruled as moot, with leave to refile if the court's ruling on the special appearances was reversed on appeal.

Two issues are raised in plaintiff's appeal: (1) were the original notices fatally ambiguous? (2) were divisions IV and V of the 'AMENDED PETITION' actually 'on file' as alleged in the original notices? These issues relate to the form and accuracy of the notices.

I. The form of the original notices. At the time involved here, rule 50, R.C.P., provided as follows:

'The original notice shall be directed to the defendant, and signed by plaintiff or his attorney with the signer's address. It shall name the plaintiff, the court, and the city or town, and county where the court convenes. It shall state either that the petition is on file in the office of the clerk of the court where the action is brought, or that it will be so filed by a stated date, which must not be more than ten days after service. It shall notify defendant to appear before said court within the specified number of days after service required by rule 53 or rule 54, and that unless he so appears, his default will be entered and judgment or decree rendered against him for the relief demanded in the petition. A copy of the petition may be attached; but if it is not or if the service is by publication, the notice shall contain a general statement of the cause or causes of action and the relief demanded, and, if for money, the amount thereof.' (Italics added).

This appeal is not affected by the change made in rule 50 effective July 1, 1975. See 66 G.A., 1975 Session, ch. 260. All references to rule 50 in this opinion will be to rule 50 as it existed before that change.

The original notices served on defendants Hawker and Hanson contained the caption of the case, were addressed to them, and included the following 'You are hereby notified that a petition of the above named plaintiff and Amendments thereto in the above entitled action is now on file in the office of the Clerk of the above named Court, and a copy of which petition and Amendments thereto is hereto attached, and which petition and Amendments thereto prays for judgments against you in the amount of $75,000.00 with interest thereon as is provided by law and for the costs of this action. For further particulars your attention is directed to the Petition and Amendments thereto, copies of which are attached hereto. A Demand for Trial by Jury is also attached.

'You are hereby notified to appear before said court at Manchester in Delaware County, Iowa, within twenty days after service of this original notice upon you, and that unless you so appear, your default will be entered and judgment or decree will be rendered against you for the relief demanded in the amended petition.

/s/ John M. Bickel

John M. Bickel, Atty. for Plaintiff

Shuttleworth & Ingersoll

1120 Merchants National Bank Building,

P.O. Box 2107,

Cedar Rapids, Iowa 52406'

Six documents were attached to the original notices; they were the petition, three amendments to the petition, the 'AMENDED PETITION' of October 3, 1973, and a jury demand.

Defendants Hawker and Hanson successfully contended in their special appearances that this form of original notice did not adequately inform them of the nature of the action against them or the relief demanded from them as required by rule 50. They asserted an ambiguity exists between the references in the first paragraph of the notice to 'petition and Amendments thereto' and the reference in the second paragraph to the relief demanded in the 'amended petition'. They said the references in the first paragraph would apply only to the original petition and three amendments but would not include the 'AMENDED PETITION' of October 3, 1973. Then they said the latter pleading would be the only document to which the second paragraph of the notice would apply. They argued this made the original notices fatally defective and inadequate to confer jurisdiction. We disagree.

In Krebs v. Town of Manson, 256 Iowa 957, 960, 129 N.W.2d 744, 746 (1964), we said:

'An original notice which does not contain the matter required by Rule 50 is fatally defective and does not confer jurisdiction over the party served with such defective notice. (citations) Recent cases * * * have relaxed the standards of literal compliance with the statutory requirements, but have not altered the basic rule. We have drawn a distinction between irregularities in a notice which are not fatally defective if no prejudice to defendant is shown, and defects which do not substantially comply with the statute and are jurisdictional.'

Rule 50, as applicable here, provides two means of notifying a defendant of the nature of the claim and the relief demanded. One means is by attachment of a copy of the petition. The other is by putting the information in the notice. Here the plaintiff sought to use the first means. Since this is information which rule 50 requires be conveyed by one or the other of these methods, plaintiff was bound to comply substantially with this requirement of the rule. However, any mere irregularity of form or technical or clerical error in employment of the method selected which did not mislead or deceive defendants cannot be relied upon as demonstrating a failure of substantial compliance. Marks v. Shinrone, Inc., 220 N.W.2d 889, 890--891 (Iowa 1974), Parkhurst v. White, 254 Iowa 477, 481--482, 118 N.W.2d 47, 49--50 (1962).

In this case, plaintiff did exactly what the method selected under the rule required to notify defendants of the nature of his claim against them and relief demanded. He attached a copy of 'the petition': a copy of the petition as originally filed and all subsequent amendments including the 'AMENDED PETITION' of October 3, 1973. Insofar as the latter document is concerned, it read as much like an amendment to the petition as the three other amendments did.

Defendants Hawker and Hanson alleged plaintiff's effort to incorporate the petition by reference in the form of original notice was confusing. This complaint refers at most to a mere irregularity in the form of the notice; it does not show a failure to attach 'the petition' to the notice. No prejudice has been asserted or shown. In fact, defendants acknowledge they understood the only pleading purporting to state a claim or demand relief against them was the 'AMENDED PETITION' of October 3, 1973.

In addition, we believe the term in the first paragraph 'petition and Amendments thereto' was sufficiently broad to refer to all the documents attached to the notices, including the 'AMENDED PETITION' of October 3, 1973. The question whether that amendment was truly 'on file' is an independent issue which is addressed separately in this appeal. Moreover, the original notices were accurate in advising these...