Marshfield Homes, Inc. v. Eichmeier
176 N.W.2d 850
Iowa
1970
Check Treatment

*1 that we would have might well be costs, we are some assessment but other one determined find that the inclined to an abuse of

by the trial court constituted tax- appeal are

his discretion. The costs entirely plaintiff.

ed of the trial court affirmed. decree concur, except Justices

J., who takes no

MARSHFIELD INC., Appellee, HOMES,

Romaine EICHMEIER, Appellant.

Supreme Court

May 5, 1970. Butler, Hall, Eldora,

Lundy, Wilson & appellant. Westfall, Laird, Burington, Bovard & Heiny, City, appellee. Mason *2 851 36, 38; STUART, Holliday v. Justice. Arthur, supra, 241 Iowa at 44 N.W. County, in Franklin 13842 In cause No. 720; Schwitzer, supra; 2d at Anderson v. here, Eichmeier, plaintiff Hunger (1874), v. Barlow 39 Iowa here, Homes, plaintiff and Marshfield 541; 426; Judgments 49 46 §§ C.J.S. A default defendants. one Am.Jur.2d, Judgments, §§ against Marshfield judgment was entered brought ac- appear. for failure to presumption The can declaratory judgment a equity in tion by be overcome matters in appeared default seeking a determination the record before court at the null in 13842was cause No. judgment judgment reciting default jurisdiction was The trial jurisdiction. for lack void Urban, supra; entered. McCubbin Holli v. valid was no court held there day Arthur, supra; Anderson v. Schwitz because notice on er, Barlow, supra; Hunger v. 49 supra; at- statute under arm” Judgments § C.J.S. effective until tempted Judgments, de- judgment The was served. Appellant contends the trial con- court affirm. be null void. clared to sidered facts which were introduced at the hearing on the declaratory judgment ac- at is a collateral I. This action findings The trial tion. court’s in indicate cause judgment upon the default tack However, is true. as our review is (1965), v. Cole No. 13842. Stake novo, de we will restrict 714, 718; Holliday v. our consideration to those appeared matters which 44 record (1950), Arthur judgment at the time in entered 719; Northwestern Kriv Iowa Securities Co. 754; Anderson v. Schwitz petition In the filed in cause 13842 772-773, 20 N.W. Iowa 236 April sought dam- 230 Tank Brown v. 2d ages personal injuries Marshfield for from N.W. 297 property damages a sustained when Valley-Des Hawkeye Life Ins. Co. gas furnace a mobile home manufac- 260 Co. 220 Moines exploded Septem- tured Marshfield Setterberg 669, 672; Bengston v. N.W. Separate sought re- ber counts 337, 35 N.W.2d Minn. (Minn.1949), covery express warranty, on theories of 154 A.L.R. Anno: 746-749. implied warranty, specific negligence and ipsa loquitur. res judgment in the Any mere error petition alleged home in the mobile judgment is now reviewable. The was ordered collaterally if it was en be attacked to Eichmeier November and delivered v. North jurisdiction. Kriv tered without as his occupied It was him Co., Hawkeye supra; western Securities from that home time to Moines su Valley-Des Life Ins. explosion. Marsh- pra; Kline Kline complained oc- field of which Eichmeier Judg 10 N.W. delivery. Although Eich- curred ments 421. § contrary, argues to the we cannot meier petition alleging interpret as attack is made When a collateral anything to do general juris had with a court of of a Eich- diction, judg after was delivered presumption mobile home there ipsa loquitur has In the count juris that the court meier. res ment is valid and allegation that there was par affirmative subject matter and the diction gas fur- the condition McCubbin v. Urban ties. 199, 201-202, left nace after the mobile home Marsh- U.S. S.Ct. L.Ed. 223, implied field’s 2d control. has not consent been a due process requirement obtaining allegations Marshfield There were no longer and consent no need be No- permit had a to do business in fact and that on the of state tice was served *3 could and did raise the fiction of copies and mailed Marshfield were to happening injury consent from the Chapter Laws of the accordance with rather than the acts of This defendant. Assembly, became ef- 60th General argument was advanced the writer of 4, 1963, July and now fective opinion in Chrischilles v. 617.3, Code of Iowa. section supra, at at N.W.2d 101-102; and appear did not and default Jason supra, 157 August On N.W.2d 113-114. See against was taken 1965. comment 54 Iowa Law Review 166-173. May judgment was entered on rejected The court it in both See and in favor cases. against the default Bishop (S.D.Iowa, v. Emerson $11,719.18 for costs. Electric Co. Eichmeier and 1968), F.Supp. 762-763. The writ proceedings instituted Garnishment were joins majority now the the basis on present action August 1968 and the stare decisis. hold no filed obtained over Marshfield as the method of employed was not effective on the We conclude the record before the trial attempted. date service was court at was entered in cause 13842 revealed Marshfield’s III. argues Eichmeier also that acts, lawsuit, which were the basis “long arm” statutes have existed since 1961 4, 1963, the effective July occurred to rather than 1963because Laws statute, “long arm” under which of 59th Assembly General was a consent attempted to and Eichmeier obtain service provided statute and for substituted service injury after the effec- occurred of state. It contained no date tive of the act. provision notifying action or of the service of This II. trial court relied and secretary of repealed state. This by Krueger this case is controlled v. Rheem by Chapter Laws of the 60th General Manufacturing Company (1967), 260 Iowa Assembly previously referred to but was 149 N.W.2d in which we reenacted therein almost verbatim with ad held intended the act to provisions ditional mailing copies apply prospectively only, and Chrischilles the named Using defendant. as a basis Griswold the statements in Krueger Rheem Manu 94, 101; Snakenburg facturing 149 N.W.2d at Iowa, Mfg., Inc. (1968), 157 N.W.2d personal outside the state Schnebly Joseph Mercy v. St. registered or certified generally mail has Iowa, Hospital Dubuque 166 N. been held to' be remedial rather than sub In the last three cases we stantive, Eichmeier argues held date of defendant’s which are between 1961 procedural and 1963 was the basis of the lawsuit must have occurred retroactivity He finds involved. July on the theory that defend argument for this Jackman ant could not be deemed to have consented Century Corporation Brick of America to subject himself to (Mo. 1967), 412 S.W.2d Iowa courts under a law which had not been enacted at the time he acted. proposition urged now Plaintiff argues that since McGee In raised in the lower court and Marshfield ternational Life Insurance supporting cites cases rule will

«53 retroactive, not be by appellant for would issues not consider Camp Dimmitt v. material. appeal. the first time bell urges apply IV. Eichmeier us to a dif v. Miller Verschoor warranty ferent rule breach of B-W liability claiming strict cases the continu Corporation v. Saluri Acceptance ing wrongs nature of the makes the date injury determinative date for retro- reply argues gen- in his activity, of the acts date apply when the eral rule does cause of action founded. We public statute a decisive involves applied theory to a similar the statute of to know even bound judicially the court is limitations in Chrischilles v. Griswold overlooked statute though such *4 (1967), 260 Iowa National Fourth He cites trial court. 100, but also held there “defendant can we Francklyn City York of of New Bank to the be deemed to consented not have 747, 751-752, 7 S.Ct. 120 U.S. appointment secretary state [to Sanitary Dis- People ex rel. 30 L.Ed. agent] by be his service act done Chicago Schlaeger

trict Chrischilles to enactment of statute”. Bros, Megarry 63 N.E.2d Ill. N. (N.D.1954), City Thomas of St. of the con at 101. Under view Appeal & sent statute the act out of Error, Appeal & ef must occur after the of action arises proposition. support of this Error § regardless fective date of , instituted. type action recognize we be While error, we no reversible Having found rule, general do not exceptions to the we the trial court. affirm In Hill one should be made here. believe America Corporation of v. Electronics (1962), 253 Iowa similar issue appellant very raised reply argument. the first MASON, LARSON, J., and

Appellant if there contended LeGRAND, REES, JJ., concur. apply, did court could arm” statute 494.2, acquire jurisdiction under section BECKER, JJ., dissent. RAWLINGS of Iowa Code consider of state. We declined to UHLENHOPP, J., takes no question as had not been trial court. RAWLINGS, (dissenting). Justice have

The contention would Although properly raised. doubtful merit if respectfully I dissent. In now, not, pass and do Krueger v. position dissents in see act, we have constitutionality Manufacturing Rheem process posed due recognized it serious Wilmington questions. Tice Chemical Inc., Iowa, Corporation (1966), 259 Iowa I would Iowa L.Rev. 166. 113. See also 54 determined 623. As we N.W.24 reverse. intended make only, Assembly prospective 60th General BECKER, position legally J., joins it could in this

Eichmeier’s dissent.