First National Bank v. Stone

122 Iowa 558 | Iowa | 1904

Weavee, J.

On July 2, 1901, plaintiff caused to be ■served upon defendant an original notice informing him that on ox' before August-15, 1901, a petition would be filed in the office of the district court of Woodbury county, de-man dixig recovery from defendant upon a cause of action sufficiently described in said notice. The'notice was in the usual form, and was signed by “C. A. Irwin, Attorney for Plaintiff.” Within the time mentioned in the notice, the plaintiff filed a petition in the office' of the clerk. Said petition was duly entitled, and regular in form, save the fact that the blank at the foot of the last page

u_

Attorney for Plaintiff.”

—-was not filled in with the signature of the plaintiff, or of its counsel. In other words, the petition was not subscribed as provided for by Code, section 3580. This unsigned petition, when filed, was inclosed in,' or had attached thereto, o cover, on the back of which was writteix the title of the cause, the name of the paper inclosed, and beneath such writing the name of “O. A. Irwin, 'Attorney for Plaintiff.” On Axxgust 26, 1901, defendant filed a motion to dismiss the action on the groxxnd that no petition had been filed within the time named in the notice, and the only petition pretended to be filed was not subscribed by plaintiff or its attorney. On August 31, 1901, plaintiff filed an amended and substituted petition, substantially identical in form with the one previously filed, except that it was dxxly subscribed by counsel. On October 10, 1901, the motion to dismiss was submitted to the court, and on October 12, 1901, it was overruled. The correctness of this ruling is the only question presented by the appeal.

Code, section 3580, provides “every pleading must be subscribed by the party or by his attorney”; and by section 3515 it is also provided, “If a petition is not filed by the date thus fixed [in the notice] and ten days before the term the defendant may have the action dismissed.” We have, then, to inquire if the omission of the signature at the conclusion of the petition is such a fatal defect that its filing in that form is equivalent to the filing of no petition at all; thus giving the defendant an absolute right to demand a dismissal under the statute above quoted. While the provision of the statute that the pleading “must be subscribed” is imperative in form, the use of these words does not necessarily mean in all cases that failure to observe their requirement makes the paper bearing this defect an absolute nullity. When such a provision has reference to some jurisdictional act, document, or process, it may well be, and usually is, held that such defect is fatal. Such, for instance, has been our decision as to an unsigned notice in Hoitt v. Skinner, 99 Iowa, 360, and, as to a notice of appeal to this court, in Doerr v. Life Ass’n, 92 Iowa, 39, and Bank v. Radcliffe, 111 Iowa, 662. But in matters which are nonjurisdictional such strictness of interpretation is rarely indulged in. For instance, the provision that a pleading “must” be subscribed is no more mandatory in form than that other provision (Code, section 3559) that a petition “must” be entitled with the names of the parties plaintiff and defendant, followed by the words “Petition $t Law,” or “Petition in Equity;” yet this court has held that an entire omission of these matters — the petition being simply addressed, “To the Judge of the District Court of Polk County” — is, at'most, a merely formal defect, which will not justify a dismissal of the action. Smith v. Watson, 28 Iowa, 218. Although the statute provides that a petition in divorce proceedings “must” be verified, the failure to verify does not go to the jurisdiction of the court, and will not support a collateral attack upon a decree obtained on such a defectivo pleading. McCraney v. McCraney, 5 Iowa, 254. Our statute also provides that, where the petition contains more than one cause of action, each “must” be stated wholly in a count or division by itself; but this is universally interpreted simply as a rule of pleading, which the opposing party may insist upon, and a violation of it carries with it no greater penalty than an order to amend. The right which Code, section 3515, gives to the defendant to demand a dismissal of the action, exists only where there is an entire failure to file the. petition within the time named in the notice. The filing of a petition that is merely defective in some matter of form, or even of substance, so long as its purpose and intent are indicated with reasonable certainty, and tbe other party is not misled into a belief that tbe action is abandoned, should not be a cause for sending tbe plaintiff out of court; nor has tbe Legislature, by this provision, expressed any such intention. Of course, if appellant is correct in bis interpretation of tbe statute, and tbe right to have tbe action dismissed has been thereby granted, then be is not to be censured for insisting upon such dismissal simply because tbe objection is tbe merest technicality. But tbe fact that tbe defect complained of is one of form only; that it is not possible to conceive that defendant was thereby misled or prejudiced in tbe slightest degree ; that be knew, from tbe name subscribed to tbe original notice, who was plaintiff’s attorney; that such notice was confirmed by tbe same attorney’s name indorsed .upon tbe cover of tbe petition; that there is no complaint that tbe pleading was in any other respect defective or informal; and that, when attention was called to tbe omission, it was quickly cured by amendment — should induce tbe court to be very reluctant to sustain tbe objection, save upon clear statutory requirement therefor, and such requirement we do not find. Tbe Smith Case appears to us directly in point, and sufficient authority for tbe views we have here expressed; and, even as an original question, we could reach no other conclusion.

Tbe ruling of tbe district court is aetirmed.