189 Iowa 851 | Iowa | 1920
I. The claim of the appellant is that defendant, Chandler, authorized one Utterback to find a purchaser for certain lands owned by defendant, and that plaintiff produced a purchaser ready,, willing, and able to buy, on the terms fixed in the authority given to Utterback. The ultimate claim of the plaintiff is that defendant wrongfully failed to convey to the purchaser produced, and that plaintiff is, therefore, entitled to a commission. The only notice in a suit mailing this claim was served on Utterback, and the effectiveness of that notice is the question before us. Such notice as this is purely statutory, and the statute provides that it may be made where an individual has, for the transaction of any business, an office or agency in any county “other than that in which the principal resides.” The record shows that Utterback resides in Keokuk County, and was there served. Confessedly, the record is silent on where defendant, Chandler, resides, and the dispute between the parties really resolves itself into a question who has the burden of proof, where special appearance is made, to object to jurisdiction. And the essential argument for the appellant is that “a presumption of law arises from the pleadings, and is sufficient to cast a'burden on the other party to show the fact is otherwise than the presumption indicates.” We are constrained to disagree. We hold that whosoever seeks to avail himself of the purely statutory right to obtain jurisdiction by serving an alleged agent,, has the burden of showing the conditions under which alone such service is authorized by the statute. If Chandler and Utterback resided in the same county, then, under the statute, this service.was invalid. Appellant does attempt to show that Chandler had created an agency in Keokuk County. This met the statute requirements in. part. The other parts were just as essential. And even as it was necessary to show that an agency had been created in' the county, ivas it necessary to shoAV that the principal and the agent did not reside in the same county. Because the appellant and plaintiff produced no evidence that the agency Avas created in a county “other than that in AArhich
We are unable to find any case entitled Plank v. Marks, which the brief of the appellant places on page 53 of 152 N. W. We find nothing in Barnabee v. Holmes, 115 Iowa 581, Moffitt v. Chicago Chronicle Co., 107 Iowa 407, Murphy v. Albany Peean Dev. Co., 169 Iowa 542, Morey v. Standard Separator Co., 174 Iowa 530, Bellows v. Litchfield, 83 Iowa 36, or in Section 29 of Abbott’s Trial Brief, sustaining the ’proposition that one who does not show that the alleged principal and agent reside in different counties may obtain jurisdiction against the alleged principal by serving such alleged agent. — Affirmed.
