21 Iowa 308 | Iowa | 1866
Lead Opinion
Service of notice and return in actions before justices of the peace are to. be made in the same manner as in the District Court. § 3864. In the District Court service is to be made: 1. By reading and delivering or offering to deliver a copy of the notice. 2. If not found, by leaving a copy thereof at defendant’s usual
We agree with appellees that the second method, or that pursued in this case, is not to be regarded as constructive service. Nor is it, strictly speaking, ^personal. The fourth method is constructive, the first and third personal, while the second is strictly neither, but rather a substitute for the more legitimate, because safer, service by reading to or acknowledgment b.y the defendant. This mode of service is statutory. It is allowed in most of the States. But for the statute, actual notice of the process Should always be given to the defendant. For the interests to be affected by litigation are regarded so impor. tant that it is not to be left to mere presumption or inference that the party had knowledge of the proceeding, but it should be positively and affirmatively established before further proceedings should be permitted. That this is the rule aside from the statute, see 3 Chitty’s Pr., 144-5, 260, 266; Tidd Pr., 166, 170. The statute, however, allows this substituted 'Service, regarding the presumption or inference fair and legitimate, that a copy thus left will come to the actual knowledge of the'party sought to be charged. And yet this certainty is not actual service; for actual service means personal, either
Where a party is served by a copy left at his residence, two or three matters are material to be considered. One is, did he really owe the debt for which the judgment was
But, that the doctrine for which appellees contend is applicable alone to cases of personal service, and where the debt was really owing, we think is fairly inferable from the authorities cited and others coming under our observation. Thus, in the case much relied oh, Trull v. Howland (10 Cush., 109), there was a mistake in the Christian name; there was actual service, and the debt sued for was the proper' debt of the person upon whom the service was made, and it was held, most properly, that the objection was waived by failing to plead the misnomer in abatement. In Smith v. Bowker (1 Mass., 76), the judgment was rendered for a debt justly due from the defendant, and he was described in the attachment and
Tilden v. Johnson 6 Cush., 354, involved no question of misnomer, but the court simply decides what was a good service against a non-resident defendant, and how far the officer’s return is to be regarded conclusive, as to the fact that defendant had, within the commonwealth, a “ last and usual place of abode.”
Johnston v. Robins, 3 Johns., 440, holds, in a case where the defendant was properly named, that service of a copy of the declaration, with notice of the rule to plead, on the defendant, by leaving it at the dwelling-house of the party, was to be considered as personal for all purposes, except to bring the party into contempt. And this rule, we are disposed to concede, would be equally applicable under our practice in the case of an original notice, where the defendant is properly named.
Wheeler v. Lampman, 14 Johns., 481, was when the constable failed to return the time of service, and upon certiorari it was held that it did not comply with the statute.
In Barnes v. Harris, 4 Comst., 375, the controversy related rather to the nature of the process, than to its service and the defendant was properly named. JBut see in that case the very well reasoned dissenting opinion of
Concurrence Opinion
in which Jewett, J., concurred, for some general principles applicable to the case at bar.
In the case of Barry v. Foyles, 1 Pet., 311, the defendant appeared, discharged the attachment by giving special bail, and it was very consistently held, that a variance between the account filed in the attachment proceedings and the declaration on which the ease was tried, made no difference; for no reference could be had to the attachment proceedings.
The process in Ames v. Winsor, 19 Pick., 247, was not left at the last and'usual place of abode óf the defendant; and the service was held defective. And it was held, that if the defendant had pleaded any plea to the merits, this would have been a voluntary submission to the jurisdiction of the court and a waiver of all exceptions to the sufficiency of the service. Commenting on this method of service however, Shaw, Ch. J., says: “ The law proceeds on the supposition that, at a man’s dwelling-house, there will be some person enjoying his confidence, careful of his interests, and charged with his concerns, who will give him actual notice, and such service being the most likely to accomplish that object, the statute, for many purposes, gives it the force and effect of actual notice. The law raises no such presumption, and the statute gives no such legal effect to a notice left at another place.” Nor does it, in our opinion, where there is a material misnomer and such service is attempted. But of this, more hereafter.
The case of Arnold v. Tourtellot, 13 Pick., 172, was not unlike that last cited. There the process was served in the State of Connecticut, beyond the jurisdiction of the justice rendering the judgment and, on error, it was neld defective.
The ease of Franklin v. Talmadge, 5 Johns., 84, only decides that a deed to William. T. Robinson was admis
The early case of Crawford v. Satchwell, 2 Strange., 1218, was trespass. Plaintiff sued by the Christian name of Archibald. Defendant justified, and averred that plaintiff was the same person who was sued by the name of Arthur. On demurrer the plea was held good, upon the ground that plaintiff had missed his time for talcing advantage of the misnomer, which should have been done by pleading it in the first action. If the service was personal, as we must presume (the case disclosing nothing upon the subject) the. conclusion from the authorities was legitimate. And yet see, even as, to such cases, Melvin v. Fisher, 8 N. H., 406; Cole v. Hindson, 6 Tenn., 234; also as applicable, Binfield v. Maxwell, 15 East., 87; Shadgett v. Clipson, 8 Id., 438; Boyden v. Hastings, 17 Pick., 200; Commonwealth v. Perkins, 1 Id., 387.
There are, however, other cases that seem to be more applicable' to the one now before us. Thus, Slasson v. Brown, 20 Pick., 436, was debt on a bond, conditioned that Brown -would not go beyond the exterior limits of the prison until lawfully discharged. That he did go without the-prison limits was admitted, but the defense was that he had been discharged from his imprisonment in due course of law by taking the poor debtor’s oath. The validity of this discharge was the question at issue. It appeared that a citation was issued to creditors, and among others to plaintiff, by the name of Ebenezer B. Slasson, his true name being Edward B. The service was made upon S., as attorney of Ebenezer B., and, says Dewey, J.: “ It is to be remarked that the notice was not served on the creditor, but on his attorney, which much strengthens the objection. Mr. S., upon whom the
The case of Fitzgerald v. Salentine, 10 Metc., 436; is cited by both parties to this controversy. And we confess that it is difficult to determine whether the judgment upon which plaintiff sought to recover in an action of debt, was held invalid because the writ in the original action was directed to the defendant by a wrong name, or because it was served by leaving a copy at his hoarding-house. If the latter was the sole ground of this decision, then the defect would have been equally fatal if there had' been.no misnomer. And yet it is said that “when a party is sued hy a wrong name, and the summons is left at a boarding-house, without other service, we cannot hold it to be such a service as is contemplated by the law.” Other parts of the opinion would seem to indicate that the misnomer alone would not have been fatal. The only, difference, however, between that case and this is, that here the notice was left at defendant’s usual place of residence; the defendant, however, at the
In Illinois the courts use this language: In making service by copy left at the residence, as in a case of constructive notice by publication, the requirement of the statute must be complied with, and this must appear affirmatively on the record. Bogland v. Same, 18 Ill., 552. And again: If the particular mode of service required by statute can in any case be dispensed with, it can only be done where the court can see that the information conveyed to the defendant was as full and beneficial as if the service had been in strict conformity to the statute. Maker v. Bull, 26 Ill., 351. Or as it is expressed in another case: To obtain jurisdiction of the person when this mode of service (by copy left) is adopted, the statute must be complied with. Cost v. Rose, 17 Ill., 277. And see to the same effect, O'Donnell v. Howes, 27 Ill., 511; Pardon v. Dwire, 23 Id., 574; Divilbiss v. Whitmire, 20 Id., 425; Wooster v. Lyons, 5 Blackf., 60; Delano v. Jopling, 2 Littell, 118. And as somewhat applicable, Farris v. Powell, 10 Iowa, 553; Diltz v. Chambers, 2 G. Greene, 479; Hodges v. Same, 6 Iowa, 78; Dupont v. Downing, Id., 172; Tunis v. Withrow, 10 Id., 305.
Leaving cases, however, we come to the consideration, more particularly of the established facts in the one before us. First, then, the plaintiff was misnamed in the original action. Iler name is admitted to be Emeline, and she was sued, and served with notice as Caroline J. She was not at the time living at the house where the notice was served, though she regarded and treated it as her usual place of residence. She had no knowledge whatever of the commencement of said action. Nor was she .aware of the judgment until some two years after its ren
We concede that the case is not free from difficulty. In view of its facts however, from the best thought we have been able to give to it, we feel constrained to hold that the instructions complained of are erroneous. Guided by what we regard the reason and policy of the law, and confining ourselves for the present alone to the peculiar facts of this case, we think defendants were trespassers. To condense them, these facts are: the admitted material misnomer, plaintiff’s- temporary sojourn at another place, her entire ignorance of the pendency of said action and of the judgment, her offer to pay the amount actually due, and notice of all these facts to the defendants before the seizure. The absence of either of these elements might materially affect the strength of plaintiff’s position. But their union would seem to make it next to impregnable, however assailed.
Reversed.
Dissenting Opinion
dissenting. — I cannot concur in the conclusion reached by the foregoing opinion. It seems to me, if, as conceded by the opinion and as fully sustained by the authorities cited and others, that at the common law, a misnomer like the one at bar, would not invalidate the judgment nor in the least affect the right of plaintiff to have execution thereon, then, it logically and inevitably follows, that since the service of the process or notice was made strictly in the mcmner provided, and substituted by statute for the common law service, that the same validity of judgment, and right to execution must exist under our statute, as at the common law. To say that the manner
The statute has provided the two methods (and others) for service, one by personally reading and delivering a copy of the notice to the defendant, the other by leaving a copy at the defendant’s usual place of residence, with a member of his family, &c. Both of these methods are alike effectual and sufficient; and for a court to say that different results and rights flow from the one manner of service over the other, is, it appears to me, to infringe upon the .legislative power of making law, rather than exercising the judicial power of construing law. To declare that a judgment is void when rendered upon the one manner of service, while it would be valid if rendered upon the other, is,, in my opinion, without the sanction of either correct law or sound reason. And this view is still further fortified by the fact that it is not- competent for a District Court to institute any inquiry as to whether the notice left with the member of the family, ever actually came to the defendant’s knowledge or not. And thus we see, that the majority opinion makes the jurisdiction of the court to render the judgment depend upon a fact about which it has no right or authority to make inquiry or ascertain.
But there is a practical result attained by the majority opinion, which adds to its objectionable character, and it is this, it encourages vindictive litigation, and renders an officer of the law liable to damages for the apparent (and as I think actual and legal) discharge of his official duty, without in the least settling or affecting the rights of the real parties in interest. In my opinion the judgment
Beversed.