Bracken v. McAlvey

83 Iowa 421 | Iowa | 1891

Given, J.

We have no argument or brief from the appellee. The question disclosed by the record is whether this action was commenced at the time the original notice was delivered to the sheriff, or not until the filing of the petition. If the former, then the action is not barred; and if the latter, then it is. The note is payable in Tama county; therefore, the action might properly be brought in that county; but the query remains, whether, in such case, the defendant being a resident of and served in another county, the delivery of the notice to the sheriff of Tama county was a commencement of the action. Section 2532 of the Code is as follows: “ The delivery of the original notice to the sheriff of the proper county, with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or the actual service of that notice by another person, is a commencement of the action.” The stipulation of facts concedes that this original notice was delivered to the sheriff of Tama county ‘ ‘ with intent that it be' served immediately. ’ ’ The action being brought in the proper county, the delivery of the original notice to the sheriff of that county was a delivery to the sheriff of the proper county, and, having been so delivered “with intent that it be served immediately,” was the commencement of this action. As the action was not barred at that date, the demurrer should have been overruled. Hampe v. Schaffer, 76 Iowa, 563 (decided since the Submission in the district court) is in point. Reversed.