Wolfs v. Challacombe, 55726

• Decision Date: 22 May 1974
• Docket Number: No. 55726,55726
• Citation: 218 N.W.2d 564
• Parties: Earl E. WOLFS, Appellant and Cross-Appellee, v. Ruth D. CHALLACOMBE and George L. Challacombe, Appellees and Cross-Appellants.
• Court: Iowa Supreme Court

Page 564

218 N.W.2d 564

Earl E. WOLFS, Appellant and Cross-Appellee, v. Ruth D. CHALLACOMBE and George L. Challacombe, Appellees and Cross-Appellants.

No. 55726.

Supreme Court of Iowa.

May 22, 1974.

Traeger & Koempel, West Union, for appellant and cross-appellee.

Miller, Pearson & Gloe, Decorah, for appellees and cross-appellants.

Heard before MOORE, C.J., and MASON, REES, UHLENHOPP and HARRIS, JJ.

MASON, Justice.

This appeal by plaintiff and cross-appeal by defendants both have to do with the means employed by plaintiff to acquire personal jurisdiction over defendants under the provisions of the Iowa nonresident motorist statutes which govern commencement of actions against nonresidents for damages caused by operation of a motor vehicle within this state.

These statutes appeared in sections 321.498 through 321.507, the Code, 1966. With the exception of the last paragraph of section 321.500, they remain unchanged in the Code 1973.

August 16, 1971, Earl E. Wolfs filed a petition at law in the Fayette district court alleging defendants, Ruth and George Challacombe, had negligently caused him personal injury and property damage in the amount of $25,196.48. The suit was the result of an automobile accident which occurred August 31, 1969, near Postville in Clayton County, Iowa, between plaintiff and George Challacombe, who was driving a car owned by his mother, Ruth, with her consent. Plaintiff is a resident of Iowa. At the time of the accident, and apparently at all times, since, defendants have been residents of Illinois.

August 17, 1971, plaintiff filed a copy of the original notice of the suit with the Commissioner of the Department of Public Safety. Section 321.500. The same day plaintiff mailed to each defendant by restricted certified mail notification of the filing of a copy of the original notice with the Commissioner; attached thereto were copies of the original notice as filed with the Commissioner and the petition. Section 321.501. The letters were addressed to each defendant individually at 181 S. Kenilworth Drive, Elmhurst, Illinois, which was the address of both defendants as shown on the report of motor vehicle accident prepared by the investigating patrolman at the time of the accident.

Plaintiff received these letters back September 3. The address on each envelope had been marked out with x's and the words 'Box 781' written above the names. Each letter also had been stamped 'Return to Sender, Unclaimed.' These envelopes also had markings indicating notice of mail arrival, postal form 3849, had been filled out by a postal employee and placed in Box 781 as to each letter.

Before instigating this suit plaintiff had engaged in extensive negotiations with defendants' insurer, State Farm Mutual. Upon return of the letters attorney Koempel immediately asked State Farm for defendants' addresses. Insurer did not have a different address; the record shows an affidavit by an agent of insurer stating Ruth was no longer insured by the company and had refused to give it a new address, and the only address the insurer had was the one in Elmhurst.

After return of the letters immediate attempts to locate defendants via telephone directories and operators in Elmhurst and surrounding areas were unsuccessful.

September 21, plaintiff mailed to the sheriff of DuPage County, Illinois, notifications of filing of notice with the Commissioner; attached thereto were copies of the original notice and petition. The sheriff was instructed to serve the documents on each defendant; the address given was 181 S. Kenilworth Drive, Elmhurst, Illinois. In the first week of October the sheriff returned service to plaintiff stating that wervice was not achieved because defendants had moved from the given address in October 1969 and could not be found in DuPage County.

Defendants appeared specially October 9, 1971, alleging jurisdiction had not been obtained over them because the attempted service under the nonresident motorist statute was defective. October 15, plaintiff filed a resistance to the special appearance and attached the sheriff's return of service showing defendants could not be found in DuPage County. On this date proof of service of the August 17 mailing was also filed alleging that mailing by restricted certified mail of the required documents under section 321.501 had been addressed to defendants at their last known residence. An amended proof of service filed November 2 stated the return receipts of the August 17 mailing were not attached because defendants refused to accept and rejected the notification.

After the filing of the special appearance attorney Koempel made numerous inquiries from various sources in both Iowa and Illinois in an attempt to ascertain defendants' whereabouts. November 3 the Illinois Secretary of State informed her defendants' address was 5700 Hillcrest Lane, Apartment 1H, Lisle, Illinois. November 12 Koempel traveled to Illinois and after a somewhat frustrating search located the address in an apartment complex outside Lisle. The label for the doorbell of apartment 1H contained only the name F. Robinson. On the mailbox for apartment 1H, located behind a partition in the lobby, the name F. Robinson was written in the normal space of names, but above this was the name Challacombe printed on stampt-out tape.

New original notices and notifications were again prepared and mailed to the sheriff of DuPage County with instructions to serve same on the defendants at the Lisle address. Personal service on defendants was effected November 24, 1971; return of service was filed December 6. Defendants filed a second special appearance attacking the jurisdiction purportedly obtained by the November 24 service.

A hearing was held March 3, 1972, on both special appearances. Koempel testified as set out above in regard to the attempts at achieving service on defendants. By interrogatory, defendant George Challacombe testified that from August 17 to September 2, he was receiving mail at Box 781, Elmhurst, Illinois; during this period he did not receive any notice of mail arrival indicating there was a certified letter for him mailed at West Union, Iowa. However, he did testify his mother received two such notices.

Ruth Challacombe testified by interrogatory she received a yellow notice of mail arrival indicating there was a certified letter for her mailed from West Union, Iowa. About August 30 she took these notices to the post office but was informed the letter had been returned to sender. Mrs. Challacombe had been on vacation for about six weeks prior to August 30 and had not personally picked up her mail from Box 781 before that approximate date; her son George had picked up some mail for her during her vacation however. George had not picked up the certified letters because they were addressed to his mother and he felt he could not sign for them. Both special appearances were overruled.

Defendants thereafter filed a motion to dismiss the petition insofar as it related to personal injury on the grounds the statute of limitations barred the action. The court sustained the motion on the basis personal service was not achieved on defendants until November 24, 1971, and such was beyond the statute of limitations for personal injury actions.

Section 614.1, The Code, 1966, provided:

'Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

'* * *

'(2) Injuries to person or reputation--relative rights--statute penalty. Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years.' (Emphasis in the original)

The August 17 original notice was the only original notice filed with the Commissioner of the Public Safety Department of the state of Iowa. In accordance with section 321.500 defendants were notified to appear and defend before noon of the sixtieth day following the filing of the notice with the Commissioner. Of course, this period had elapsed before the November 24 original notice was served on defendants. This second, notice, in addition to advising defendants that an original notice of suit against them, a copy of which was attached, had been served upon each of them at Des Moines, Iowa, by filing a copy of said notice on the 17th day of August 1971 with the Commissioner of the Public Safety Department of the state of Iowa, directed defendants to appear before noon on the sixtieth day following service of the original notice upon them.

This court granted permission to take an interlocutory appeal. Rule 332, Rules of Civil Procedure.

Plaintiff's appeal presents as issues for review the action of the trial court: (1) in sustaining the motion to dismiss; in holding defendants were not served with an original notice until November 24 and the August filing with the Commissioner and subsequent mailing to defendants pursuant to section 321.501 did not toll the statute of limitations thus making the November 24 service sufficient to confer jurisdiction; (2) and (3) in sustaining defendants' motion to dismiss because defendants refused or rejected notice mailed August 17; (4) in failing to exclude the time defendants were not residents of Iowa in computing the two-year statute of limitations; and (5) in sustaining the motion to dismiss because plaintiff's petition does not show on its face that the statute of limitations had run.

Defendants cross-appealed from the overruling of their two special appearances. They contend plaintiff failed to carry his burden of proving notification of filing was either delivered to defendants or refused by them; the November 24 service did not substantially comply with applicable code provisions.

In an action against a nonresident original notice is served pursuant to section 321.501 which states:

'* * * 1. By filing a copy of said original...