31 Iowa 435 | Iowa | 1871
“ Section 3602. If the plaintiff is in possession, he may file a petition setting forth his estate, whether of inheritance for life or years, and describing the premises, and averring that he is credibly informed and believes that the defendant makes some claims adverse to the petitioner, and praying that he may be notified to show cause why he should not bring an action to try the alleged title, if any, and there
“ Section 3603. If the defendant shall appear and disclaim all right and title adverse to the petitioner, he shaP recover his costs; if he shall claim title, he shall, by answer, show cause why he should not be required to bring an action and try such title, and the court shall make such judgment or order respecting the bringing and prosecuting of such action as may seem just.
“ Section 3601. In other particulars, the rules above prescribed shall, in the cases in the last three sections contemplated, be observed as far as they are applicable.”
The following is a summary of the proceedings wherein said judgment was rendered. On the 17th day of November, 1861, the plaintiff therein having filed his petition following precisely, in its allegations and prayer, the requirements of section 3602, and alleging nothing in respect to the citizenship or residence of the defendants, and the court being then in session, made an order that the defendants therein be notified to appear on or before noon of the second day of the next term of this court, and show cause why they and each of them shall not bring an action to try, etc. (also following the statute). A notice was issued containing the precise matter ordered by the court, but in the form of an original notice in an ordinary action and signed with the plaintiff’s name by his attorneys, notifying the defendants of the filing of the petition and that the court has ordered them to be notified, which is hereby done, to appear, etc., on, etc., and show cause, etc.; and that if
This judgment is assailed as being void, on the ground, first, that there was no sufficient service of notice upon the defendants therein. Our statute provides (Rev., § 2881) that service by publication may be made in either of eight different classes of actions, the sixth in the order named is “ actions which relate to, or the subject of which is, real or personal property in this State, when any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is a non-resident of the State or a foreign corporation.” It is also provided (Rev., § 2832) that “before service can be made by publication, an affidavit must be filed that personal service cannot be made within this State on the defendant to be served by publication. When such affi
The learned counsel for appellant, in an argument remarkable for its clearness and acumen, contend that, before personal service can be made without the State, an affidavit must be filed that personal service cannot be made within the State, as- provided by section 2832, when service is to be made by publication; and this, because actual personal service without the State only supersedes the necessity of publication. The whole argument, however, is answered by the single statement that the true construction of section 2835 is that personal service without the State supersedes the necessity of service by publication. In other words, that the word “ publication ” as used in that section means not only or merely the act of publishing the notice for four weeks in the paper, but also the other acts, both preceding and following that, which the statute requires in order to make a completed service by publication. So that when personal service is made without the State, it is not necessary either to file the affidavit that service cannot be made within the State, nor to procure the designation in writing by the clerk, nor to file the affidavit, etc., with the clerk. The case of Bates v. The C. & N. W. Railway Co., 19 Iowa, 260, is in harmony with this view.
Some criticism, in the argument, was made as to the form of the notice, and that it did not appear to be an order of the court, etc. But we see no valid objection to it on this ground. It seems to be very full, clear and specific.
The sections in question are found in the chapter entitled “ Actions for the recovery of real property,” and the sections preceding them in that chapter relate to actions for the recovery of real property when the defendant is in possession of it. The form of the action and the method of proceeding therein is very materially different from the common-law action of ejectment against a party in possession of real property claimed by another. The sections under review provide, that an action in the nature of that prescribed by the sections preceding may be brought by a plaintiff against a defendant who is not in possession of the real property in controversy. The proceedings under these sections are not so materially different from the proceedings to quiet title under the former chancery practice, as are the proceedings prescribed for the recovery of real property different from the former action of ejectment. If this material difference in the proceeding for the recovery of real property does not justify its designation as a special proceeding, neither will the difference in the proceeding to quiet title justify such designation. The statute itself, it will be observed, designates each alike as an “action.”
The sections in controversy very wisely provide that if the defendant who is not in possession shall persist in his claim of title, he must bring his action to establish it,
But if it was in fact a “ special proceeding,” and rightly designated as such, the case would not be different; for, by Bevision, sections 4173, 4174, the rules of proceeding prescribed for the commencement and conduct of civil actions, apply in all proceedings of a special character, unless in the provisions concerning such it is otherwise expressly provided. Our conclusion, therefore, is, that under our statute an action to quiet title may be brought and jurisdiction obtained by the service of notice by publication, or by personal service out of the State, in the manner provided for such service in other actions.
Our attention has been called to the case of Macomber v. Jaffray et al., 4 Gray, 82, where it was said, under a statute similar to ours, to be the well-settled practice not to compel a party residing out of the commonwealth to bring a suit in the State courts; that to issue such an order would deprive a defendant of the election to sue in
In the case of Grant v. King, 31 Mo. 312, also cited by appellant’s counsel, it is held, under a statute very similar to ours, that actual notice is required in order to give the court jurisdiction; notice to a non-resident by publication is not sufficient. This case goes far toward sustaining the position assumed by the appellant’s counsel; but it is grounded to a considerable extent upon the absence of actual notice, or notice in fact, as contradistinguished from “ a mere notice in a newspaper.” And the opinion, after commenting upon the distinction between a proceeding to subject the property of a non-resident to the payment of his debts, where service by publication was authorized expressly, and a proceeding to require a non-resident to show cause for not bringing a suit to try his title, where service by publication was not expressly authorized, concludes as follows: “We do not say that the legislature could not so make the law; it is not necessary to speculate on this point; but the statute we have been considering does not so declare expressly, and, as the proceeding is somewhat peculiar, it ought to be confined to such cases as clearly fall within the intent of the act.”
Our statute, as we have seen, does expressly authorize service by publication or by personal service without the State, and this, whether it is to be regarded as “ an action” properly so called, or a special proceeding. The power of the legislature to expressly authorize service to be
It has also been held by the supreme court of Missouri, in the case of Von Phul v. Penn, 31 Mo. 333, that the plaintiff in such proceedings, to cpiiet title under their statute, must be in the actual possession of the premises in order to entitle him to institute the proceedings, while our statute authorizes it “ by one either in or out of possession.” Eev., § 3601; see, also, Rutherford v. Ullman, 42 Mo. 216. See, also, a recent statute of this State expressly authorizing service by publication in such proceeding. Laws of 1870, p. 212. Since the notice was duly served in the manner authorized by the statute in such proceedings, the court has jurisdiction,' and its judgment is therefore conclusive.
Our present conclusion is in accord with that reached by this court upon the first hearing. Two of the judges then on this bench have since retired, and their places are filled by two others, and all have agreed in the same conclusion. A rehearing was granted. One consideration leading thereto was the brevity of the opinion first filed, stating simply the conclusion reached, without discussing' the grounds upon which it was rested.
Affirmed.