Cibula v. Pitt's Sons' Manufacturing Co.
48 Iowa 528
Iowa
1878
Check Treatment
Beck, J.

1. practice : tioiirot petition. I. Code, § 2600, provides that if the petition be not filed by the date fixed in the notice, and ten days before the term, “the action will be deemed discontinued.” This language is imperative, and unless the defendant waive the non-compliance with the terms of the notice the action must be discontinued. See Hudson v. Blanfus et al., 22 Iowa, 323.

2_._. appearance. II. Did the appearance of the defendant, for the purpose of presenting the motion to discontinue the cause, waiTe the defect resulting from the late filing of the petition?

The language of section 2600 being imperative, no waiver will be presumed from the special appearance for the purpose of the motion, unless it has that effect under a statute. Surely it is inconsistent with the rules governing the practice ■of the courts to hold that a defect in proceedings, which the imperative language of the statute declares shall work a discontinuance of the case, is waived by the party entitled to take advantage thereof, by his raising an objection thereto. We know of no statute prescribing such a rule.

A different view has been advanced which is, apparently, based upon the following language of Code, § 2626: “An appearance, special or other, to object to the substance or service of the notice, shall render any further notice unnecessary, but may entitle the defendant to a continuance, if it shall appear to the court that he has not had the full timely notice required of the substantial cause of action stated in the «petition.”

This provision is applicable to cases wherein there are objections to “the substance or service of the notice.” The *530thought of the Legislature was, that if the notice, though defective, should bring the defendant into court, he should be held to appear to the action. The provision is, therefore, reasonable.

But the objection in this case is not to “the substance or service of the notice;” it is to a proceeding after service and contemplated by the notice. The notice and service are perfect, and are sufficient to bring the defendant into court. Upon his appearance it is disclosed that an irregularity exists which the statute (Code, § 2600) declares shall operate to discontinue the action. It cannot, surely, be claimed that the provision, section 2626, intended to secure the appearance of defendant upon a defective notice, will so operate that defendant shall be presumed to waive an irregularity subsequent to the notice by objecting thereto. Such a construction would make it a statute of jeofails, more comprehensive than has ever been devised.

We are of the opinion that the Circuit Court erred in overruling defendant’s motion.

Reversed.