197 Iowa 424 | Iowa | 1924
Tbis is an action to set aside a decree entered against tbe plaintiff herein, in an action to quiet title wherein be was defendant, and tbe defendants herein were plaintiffs. Tbe court below vacated tbe decree, on the ground that there was no such service of tbe original notice in tbe former ■ action as to give tbe court jurisdiction. Tbe correctness of tbis ruling is tbe ultimate question presented, although there is necessarily also involved tbe refusal of tbe court to permit tbe return of tbe original notice to be amended.
Tbe land involved in tbe action to quiet title is in Jasper County, and tbe original action was there pending; but tbe ap-pellee, tbe defendant therein, was at tbe time a resident of Powe-shiek County. The return of service of tbe original notice in tbe former action was by tbe deputy sheriff of Poweshiek County, and showed that tbe original notice was served personally on tbe defendant therein, by reading tbe notice to him and delivering to him a copy, in Sugar Creek Township, Poweshiek County.
It is conceded that tbis return does not correctly state tbe fact as to tbe service. Tbe testimony of tbe officer who served tbe notice is uncontradicted, and to tbe effect that be served it on the defendant in tbe action to quiet title by leaving a copy thereof with Lor ene Mintle, tbe wife of tbe defendant, a member of his family over 14 years of age, at tbe defendant’s usual place of residence in Sugar Creek Township, Poweshiek County, and that tbe defendant was not found within tbe county of his residence. There was, in fact, good service on tbe defendant in that action by substituted service. Tbe defendants in tbis action, after that fact was shown, asked that tbe officer be authorized to amend bis return in accordance with tbe truth. Tbis was denied.
Amendment of the return of service of notice or summons may be made after judgment. See Lawrence v. Howell, 52 Iowa 62, where there was no return of service until a year after the judgment was rendered, and Hoyt v. Brown, 153 Iowa 324. In Jeffries v. Rudloff, 73 Iowa 60, the sheriff was permitted to amend his return on a writ of attachment after judgment, and when an action was pending against him, based on the return. See, also, 32 Cyc. 539; 21 Ruling Case Law 1329; O’Brien v. Gaslin, supra; Shufeldt v. Barlass, 33 Neb. 785 (51 N. W. 134); Schmidt v. Stolowski, 126 Wis. 55 (105 N. W. 44); Wade v. Wade, 92 Ore. 642 (176 Pac. 192, 7 A. L. R. 1143, and cases there cited).
It is insisted, however, that this is a case of false return, and not merely a defective return; and that in such case the court acquired no jurisdiction to render the original judgment, and the return may not be amended. We do not regard the distinction as important or controlling. Any return that misstates .the facts may be said to be a false return, but we think, for the reasons hereafter stated, that fact does not prevent an amendment according to the truth. In Liston v. Central Iowa R. Co., 70 Iowa 714, the question arose with respect to the service of a notice required to entitle the owner of stock injured by a railroad, at a point where it had the right to fence its right of way, to recover double damages. It was held that the officer’s return, showing that service had been made by leaving a copy, could be corrected by testimony that the original was served. In Buckmiller v. Creston, W. & D. M. R. Co., 164 Iowa 502, the return showed that the notice was served by one as sheriff, outside his county; but he was permitted to amend the return to show that he served it in his individual capacity, and not as an officer. See, also, Shufeldt v. Barlass, supra.
It is the fact of service that confers jurisdiction; not the return of service merely. The return of service of notice made
“The position is certainly plausible; but where service is actually made, it appears to us that jurisdiction is acquired, so far as the person is concerned.”
In Buckmiller v. Creston, W. & D. M. R. Co., supra, it was said that it was the fact of service that gave jurisdiction; that the evidence of the service might be insufficient, but, if the notice was actually served as required by law, and by one authorized, the return might be corrected. To the same effect are Schmidt v. Stolowski, supra; O’Brien v. Gaslin, supra; Shufeldt v. Barlass, supra; Wade v. Wade, supra; Leland v. Heiberg, (Minn.) 194 N. W. 93; Lovin v. Hicks, 116 Minn. 179 (133 N. W. 575); Paulin v. Sparrow, 91 O. St. 279 (110 N. E. 528); Axtell v. Rooks, 39 S. D. 31 (162 N. W. 751); Marin v. Titus, 23 S. D. 553 (122 N. W. 596); 21 Ruling Case Law 1315. In Overland Davenport Co. v. Novak Auto Co., 190 Iowa 205, although the notice and return were not on file at the time judgment was rendered, the judgment was upheld.
Appellee relies upon the case of Bradley Mfg. Co. v. Burrhus, 135 Iowa 324. In that case no attempt was made to amend the return, and it appeared without controversy that, under the undisputed facts established, the return in question did not conform to the requirement of the statute, and did not show good service. No other result, under such a state of facts, than the one reached could have been arrived at. Some of the discussion of the question is, however, vulnerable to the criticism that it ignores the proposition that it is the fact of service, rather than the return of service, that confers jurisdiction. It also distinguishes between a return that incorrectly states the facts of the service and one that is merely defective or insufficient, and bases the conclusion reached upon such distinction. In these respects the case is clearly not in accord with either the prior or the subsequent decisions of this court or the weight
In the instant case, the return showed good service, by personal service on the defendant. On the face of the record, the court had jurisdiction of the person of the defendant, and, in default of an appearance, on the record as it then stood, properly entered a default and decree. It is now made to appear, not that there was no service on the defendant, but that the service was not as recited in the return, and was substituted service, such as is provided for by Section 3518 of the Code. Since it is the fact of service upon which the jurisdiction of the court depends, this service did, in fact, confer personal jurisdiction
We are clearly of the opinion that the appellants should have been permitted to amend the return in accordance with the facts, and that, under the undisputed testimony, showing good service of the original notice upon the defendant in the former action, the judgment and decree therein should not have been vacated. — Reversed.