*1 420 R.C.P., point plaintiffs other brief 344(f) V. rule requirement
This contend that even Mark’s intention- position: plaintiffs’ not aid does ally to causing damage “Ordinarily proof burden of follows cargo policy, this was excluded under pleads and he who pleading; obligation defendant did relieve not of an issue affirmative relies insureds, the named Richard C. and to carry proving it.” the burden must Henschel, injured where the Mildred L. party to them was recover from plain- allegation questioning Defendant’s rather than additional insured. plaintiffs performance that failed tiffs’ finding of or rul- trial court made no fact made timely of loss which was notice ing no Plaintiffs made on defense. liability precedent to its a condition findings be en- motion that court's compliance with rule 98 simply fend was larged or Rule amended. R.C.P. deny such shall not be sufficient to that “it performed plaintiffs averment [that agree with defendant’s We conten on their performed all conditions tion that in a law case tried it, contradicting but the facts in terms part] findings as which of fact or issues stated”—not the state- relied must be requested are conclusions of law made unnecessary support plain- fact ment of a will not be considered on review. Eno v. Motors Ins. tiffs’ Wilson v. case. See Assn., Adair Co. Mut. Ins. 250, 253, in Corp., 349 Mo.App., S.W.2d 262-263, Mason Tire N.W. defense defined an affirmative Lock, (not & Rubber Co. N.W. necessary not resting “one facts reported reports); in Iowa and 5 C.J.S. This so even support plaintiffs’ case”. Appeal and Error 1460. § had asserted fact though defendant “af- designated portion of its answer The case therefore firmative defense”. Affirmed. performance repeat, proof We concur, except All UHLEN- necessary Justices precedent condition was HOPP, J., part. who takes no action, not defendant’s. If tiffs’ cause of proved or excuse performance had not been established, delay not justification for prevailed.
plaintiffs could there is not
Plaintiffs’ contention trial support evidence
substantial notice of loss to finding plaintiffs’
court’s necessity timely was MULLENGER, Appellee, L. William theory it was defendant’s be based giving prove delay in burden to Clause, Charles W. CLAUSE and Lorna J. justified. loss not excused or Because Appellants. plain it was reached that conclusion burden, cannot be contention No. 53924. tiffs’ sustained. Supreme Iowa. Court of say er- trial court We cannot June in arriving law to the rules of facts roneous at its conclusion. disposes plaintiffs’
This brief holding
points the one as- urged and 4 under
signment of error. *2 attached, a general in the no- statement action,
tice of the relief cause of manded, money, and if for the amount thereof, necessary. is not At the same time defendants were served similar manner with notice of issuance writ *3 levy against attachment and of their Denison real estate. Code section 639.31. appeared specially, challeng- Defendants ing the an jurisdiction court’s because ex- personal per- in in traterritorial service an damage jurisdic- sonam action confers no Cosgrove, City, and Sioux Wetz & D. tion over them. Mallonee, appel- Mapleton, for Howard special ruling Before court’s lants. appearance, plaintiff petition amended his Norelius, Denison, appel- for Norelius & per- striking ad clause for damnum lee. judgment sonal from both divisions and substituting prayer for County prop- defendants’ Crawford MASON, Justice. erty claimed amount of commission due. tried to This is a law action real Mullenger, a licensed William L. No new the in rem ac- broker, from Charles seeks to recover estate defendants, per- either was served de- Clause, nonresident and Loma W. J. sonally by publication. fendants, the sale of commission again Defendants contested court’s County. real estate Crawford their jurisdiction specially by appearing appeal from an adverse Defendants petition, asserting amended the reasons judgment. originally urged ground and the added that in the original notices served on them alleged in division of his Plaintiff one personam jurisdic- action conferred no listing contract petition an between oral subsequent tion in the in rem action. part his parties, performance on perform. The other refusal to appear- special the first court ruled The theory quantum division based on amend- plaintiff’s moot ance was made plaintiff asserts each division meruit. their overruled petition and ment and in each are nonresidents defendants gen- the amendment special appearance to that attachment issue prayer asks requirements of observing erally without against de- personal judgment that he have Wilmington Tice rule See R.C.P. en- Crawford district court fendants. 32-33, Corp., 259 Iowa Chemical directing property in
tered an order 616, 620, supplemented opinion be attached. value $1200 143N.W.2d 86. denying original notice an attached then filed answer An with Defendants I, ad- granting allegations attach of Division petition generally and order copy licensed was a mitting only Carroll Clause ment was served on Mrs. they nonresi- Ohio, on Charles was real County, and service estate broker origi They an affirmative serving asserted as his wife. substituted dents. form, alleged in said divi- notice, complied printed the contract nal on a fense that purview the statute of Civ sion requirements of rule Rules was within 622.32, in section petition of frauds contained copy il Procedure. When petition jurisdiction Code, 1966, confer void—a contention and was II rem. Answering Division appeal. pursued para- generally denied each defendants Ordinarily personal service on a argument they thereof, although in graph defendant outside this nonresident state status and nonresid- plaintiff’s admit their confers on courts of this In answer to the amended ence. personal judgment, state to enter prayer of each division. they denied the equivalent being generally publi service reversal I. cation, R.C.P., juris rule and confers plaintiff against them for a 3 awarded Wilson, diction Esterdahl rem. price, on the contract sale cent commission 110 N.W.2d costs, assign five interest and also Company, See Bauer v. Stern Finance they argue in di- errors relied on which two (Iowa 1969); 169 N.W.2d Miller
visions. *4 Cooperative Company, v. Farmers 176 N. (Iowa 1970), May 5, W.2d 832 filed they the first division maintain the Process, and 72 73.§ C.J.S. ruling in court erred in effect the petition any amendment to corrected defect important An distinction between in original the service of the notice proceedings in personam and in is rem that failing spe- and in to sustain their purpose proceeding personam the in is appearance. cial They also contend the impose through to judgment the of a court overruling special ap- court erred in their some responsibility liability directly or pearance petition. to the amended person defendant; the of the where aimed, as proceeding in rem is not at the any did not waive al Defendants person defendant, property, of at his but leged overruling error in order the court’s thing status or some pow other within the special appearance proceeding their in to jurisdiction er and of the court. Jurisdic trial on the merits. tion to render judgment pri in rem is R.C.P., 66, Rule provides: marily presence founded on the property of in the state. Federal Land Bank of Oma may appear specially, “A defendant Jefferson, ha purpose attacking jurisdic- the sole of the 855, 857-858, 1282, N.W. 132 A.L.R. court, only gen- tion of the his but before citations; Anderson, Knoop v. D.C.Iowa appearance. appearance special eral The F.Supp. N.D. 71 840. writing, shall be in filed the clerk and with assignment of argued Defendants’ errors grounds spe- shall the If his state thereof. original this division—an notice which overruled, appearance erroneously cial is jurisdiction confers no person over the may plead proceed he to the merits or may defendants is void and not be revised waiving trial without such error.” or peti- corrected an amendment the support grounds the asserted jurisdiction upon to confer court the special appearances their that the presents question the the whether rem— upon the jurisdiction notice confers no acquired court jurisdiction effective to ren- personam, either rem or court judgment against property. der argue jurisdiction fendants over a nonresi- only essentials to exercise personam damage
dent defendant an power proceed against the state’s by personal serv- action cannot be obtained property pres defendant are an absent jurisdiction of ice outside the territorial borders, sei its ence the res within original notice the court and service of an proceed at commencement of the zure jurisdiction over the which confers no the owner to ings opportunity and the may son void and of the defendants is Pennington Nat. Fourth be heard. by an amendment revised or corrected be the defendant jurisdiction over Bank, has S.Ct. (1917), 243 U.S. Thus, if the property. over 1917F L.R.A. L.Ed. money against to recover brings an action will reveal at citator glance A in another who is domiciled has defendant this case frequency with which personally is State authority. been relied process outside State served the res within essentials these Of brought and which the action is thereafter County of the Crawford jurisdiction property of the defendant within State at attachment seized under court and was attached, void, judgment by is default is petition. “But filing of the time is rendered where property does not con- the mere seizure against personally, the defendant but also proceed upon the fer property where it attached directs that * * * ain The seizure judgment. applied to satisfaction of the property seized only brings the suit in rem however, Where, tiff’s claim. the defend- court, in- custody of the within the ant is attachment and is notified theory of that fact. forms the owner given before defend is in the property that all law him, judg- rendered owner, person possession of its directing ment thereafter that the rendered oper- therefore agent, its seizure will satis- attached notice impart him. Where ate plaintiff’s faction of the claim valid.” right thus the owner has given, *5 following above The illustration the charges respecting heard the appear and be quote remarkably is similar facts. is claimed. That for which the forfeiture recognized and its exercise right must be Judgments statement in This § C.J.S. proceed can be- allowed the court before question: the also bears yond judgment. juris- The the seizure to not to acquired diction the seizure * * * jurisdiction the If court has of “ pass upon question of forfeiture abso- the the or status in res involved the controver- question lutely, pass upon that after but to sy, may a rem judgment render in to owner opportunity has been afforded against a nonresident on or constructive parties appear and be and interested to service, judg- extraterritorial but such a charges. this end some heard the To or judg- ment is valid effective aas beyond that proceedings, the notification of inment rem. seizure, arising prescribing the from the be appearance time within which the must personal actual notice service “While * * * made, is essential. manner process required, of is not of some form immaterial, of is the notifi- notification but persons actual or notice to all constructive indispensable.” cation 3 Freeman is itself interested, appearance, voluntary or a ais Ed., Fifth Judgments, section 1530. necessary prerequisite to the rendition of a -rem, and, valid the absence expressed A of point similar view is notice, pub- of there must be such actual Restatement, comment b to section or proclama- lished notice constructive Judgments: requires particular tion in the as the law is not subject “Where the defendant case, by persons having interests jurisdiction the the court the be are be supposed affected informed property tiff seeks reach of the defend- the proceeding.” apply ant and it to satisfaction of his defendant, ordinarily against claim it is In other words a method notification acquire necessary ju- employed reasonably that the court should which is cal- be property begin- at the knowledge risdiction over culated to action, ning attempted of the the court jurisdiction since has exercise of and an proceed opportunity action in the where to be heard. be- sale of their Denison property, the distinction this connection quasi in rem that he proceedings compel in rem and to the satis- tween sufficiency determining application faction of his claim the of their important is employed. property by This prayer of notice attachment. The of the method of the may petition pointed a method of notification out to since them that an attach- so pro- an in in the case of ment was asked. The order let sufficient them know adequate ceeding which would it had levy been issued and the notice of quasi proceeding a in rem apprised further property where their involved, type as here. second been in- original seized. formed steps necessary defendants of the in com- is made clear distinction This preserve opportunity their to be heard 32, Restatement, a, Judg- ment section protect their interest the real estate ments : involved before was rendered “ * * * subject to them. thing a Where may be State, proceeding- power It must be conceded personal service thing in the the interests brought affect original petition notice with at- but of all merely particular persons tached on these nonresidents outside proceeding persons the world. Such territorial jurisdiction of this in- state was rem, as distin- proceeding is called effectual confer on the court jurisdic- af- brought to from a guished proceeding personam. Nevertheless, even particular thing the interests fect prayer petition originally proceeding persons only, which is called personal asked for judgment, quasi in rem. notice with contents types. persons. serts an claim of “Proceedings quasi in rem are “ [*] his interest established as [*] * * a interest in [*] designated person the first *. type against the designated seeks to of two as- volved. protect their interest in the *6 more notice of exercise fendants Crawford effectual than a notice For how, levy County when purpose. newspaper. adequate and where to be heard and it was published to advise they might certainly in a in- quasi type proceeding “In the second of hold the We method of notice em he plaintiff the not assert does ployed by plaintiff reasonably was calculat asserts property, but has an interest the ed to at knowledge defendants against personally, a the defendant claim tempted op of jurisdiction exercise and an of compel to the satisfaction and seeks to portunity to be heard and was sufficient property of the application of his claim the court confer on the in rem. defendant, garnishment.” by attachment or correctly court trial overruled de- appearances. fendants’ special foregoing pronounce- line with we examine the notice afforded ments II. In the other division defendants constructive service on defendants Ohio argue the erred in (1) finding plain- court existence of the third essential determine tiff had of effected sale defendants’ Pennington Fourth Nat. announced v. property, failing of to find as a matter (2) Bank, supra, the owner of of law that contract of sale and sale to be heard. property was null and void for overruling and (3) failure of conditions copy of notice with defendants’ motion to dismiss. attached informed that William defendants matters, Mullenger considering L. Before these further making claim ap- They in the for a facts is called for. them Crawford district court narration of undisputed. allegedly pear real estate due to be commission 426 Denison orally
Defendants
listed their
not
novo but
III. Our review is
de
agreeing to
plaintiff,
assigned.
sale with
Rule
R.C.P.
house for
errors
percent
pay
sale
of
findings
commission of
In our review the
fact
nego-
agreed
handle all
ver
price.
special
Plaintiff
trial court have
effect
behalf.
jury
in defendants’
verdict.
equivalent
tiations to conclusion
dict and
to a
are
prospective
house to
Mullenger
supported by
showed the
If
evidence
substantial
Merry
law,
purchasers including Ferdinand
justified
matter
as a
who,
agreed
negotiations,
after some
appeal.
Kruse
Rule
not
disturbed on
will
be
words,
He had discussed
purchase the house.
344(f)
(1), R.C.P.
other
Stated
a conver-
proposed
the terms of
find
in a law
court its
action tried to the
specifically ad-
evidentiary
sation with defendants
adequate
ings
having
of fact
subject
contract would
vised them the
in
support
not
set aside unless
shall
buyers’
from Denison
obtaining a loan
It
view of law.
duced
erroneous
Loan Association
Savings and
follows,
Federal
preclude inquiry
the rule does
by defendants
a pledge-back
whether, conceding
$3000
into the
question
required.
being
as sellers
fact,
finding
truth of a
the trial
mate
erroneous rules of law which
attorney prepare a real
his
Plaintiff had
Iowa,
rially
Alsco
Inc.
affect the decision.
purchasers
contract
estate
wherein
Jackson,
N.W.2d
Iowa
$39,750
down
agreed
pay
with $500
Benter,
France
on or before October
the balance
may also
270. We
abstract
delivery
warranty deed and
undisput
findings
interfere when such
are
the sale
the contract terms
of title. Under
may be
conflicting
ed or
inferences
buyers’ obtaining
upon the
was conditional
drawn from them.
from the Denison
a written commitment
vided if either
tract
payment
loan
loan. As a further condition
chasers.
take
Federal
obtained
association as further
would
Savings and Loan Association
immediately
agreeing to
be null and void and the
provided,
mortgage
loan
returned to
pledge
or the
the sale and
security for its
$3000
pledge
it was
$28,800
down-
pur-
con-
pro-
pendent upon the sale of their real estate.
petition,
tiff
plaintiff
house
They accurately point
contend
* *
support
*
plaintiff’s right
commission
“defendants
would sell defendants’
[3]
alleged
percent
of their
*
**
agreed
position
paragraph
out
selling price
recover
[description].”
to pay
in argument
amount
defendants
dwelling
1 of
is de-
if
They
downpayment
argue
the contract of sale was con-
Kruses’
$500
*7
tingent
defend-
delivered to
it
form of a check was
three conditions and even if
by
De-
signed
them.
were
ob-
ant with the contract
conceded
condition
Kruses’
orally
taining
and
signed
fendants
the contract
a written
from the
commitment
pledge-back.
agreed
agreeing
loan association and their
met,
pledge-back
security
as
$3000
Kruse
gave
the loan association
23
June
compliance
there
evidence
with the
days
for a
commitment
30
written
condition;
third
that
and
that
the sale
expired
$31,800.
commitment
loan of
nullity
buyer
if
contract would be a
August
the loan
and
30
was not renewed.
loan,
were unable to obtain a
a condition
renew
extend
association refused to
completely
by plaintiff
ignored
and
be-
loan to Kruse
commitment or
make
court.
and em-
financial
change
cause of a
in his
ployment status.
They insist
the loan commitment
letter
through plain-
did not constitute a loan and
go
When the
did not
June
they
that
time set when
October
the commis-
tiff filed his
performance by
buyer,
could demand
sion.
the risk of defendants
by the asso-
when the contract
a loan
been denied
Kruse had
was entered
the best
into and
maintain
ciation. Defendants
granted judgment
commission”,
con-
for his
for the
which can be said
buy
quoted
and relied on this
an offer to
statement
tract is that it constituted
from an
Merry
Annotation in
Kruse
74 A.L.R.2d
by
Ferdinand
made
being 443:
the offer
acceptance
them with
by
obtaining the
buyers’
upon the
contingent
“Generally, may
be said that where a
unfulfilled,
con-
condition
loan. This
procures
real-estate broker
a customer who
tract was void.
accepted
valid,
principal,
and a
binding or enforceable contract is drawn
entitled to
argues
Plaintiff
he became
them,
finding
between
the commission for
pur-
produced a
when he
the commission
the customer is
earned even
who
acceptable
owners
chaser
to defendant
customer fails or
comply
refuses to
with
contract with
binding
written
then made
the contract.”
terms and
purchasers providing for
purchasers were to
conditions which
At
the Annotation the author
though they
conveyance even
subse-
cites
Ferguson Realty
Scott v.
C.
Co.
J.
the terms of
quently
comply
failed
(1928)
206 Iowa
221 N.W.
subse-
further asserts a
the contract. He
Nickelsen v. Morehead (1947) 238 Iowa
failing to
quent
by purchasers in
default
supporting
gen-
N.W.2d
as
failing
comply with the contract terms
eral statement.
paying
fully consummate the
contract
right
affect
Miller,
the balance due did not
In White v.
259 Iowa
614-
615,145
commission.
this court said:
findings
court in its
determined
trial
“The
governing
right
law
of a real
the contract
had two conditions:
involved
estate broker to a commission has been
commit-
obtaining a written
purchasers’
well
consistently
settled and
followed. In
mort-
Small,
association to
Nagl
ment from the loan
to the terms effect, an en tention defendants had entered into taking contract’s precedent to the agreement. enforce To an payment, is not forceable a cash present such as create an is not able a contract must agent agreement buyer, then by the formed literally commission, pur- obligation. true for the If this to this entitled Ferguson agreement. a v. C. able to bare Scott ready, willing, and chaser is J. Co., at proposed. Realty supra, 206 Iowa terms on the purchase make is, a manifestation of at That N.W. (Citations) legally com assent two or more mutual “ agent that when the another, ‘It is well settled petent persons one an essential acceptable to the purchaser proposes a only requisite to enforceable but not the owner, binding a con- Contracts, with him who makes Third contract. Williston and condi- providing the terms tract for Ed., section 2. (Jaeger), conveyance a shall have tions on which he a val- determining whether there was as be- nothing remaining property, of the id, agreement binding or enforceable be- performance tween them save buyer we tween the and seller are immedi- condi- terms and accepted purchaser of the ately provision of the confronted with this into, the entered of the contract thus tions contract: agent * * entitled to commission. becomes ’* 850) * * * 138 N.W. (loe. cit. “If loan obtained is not ** * to be this and contract null sale the several rules “The to which extent * * and void followed Nagl forth in been set Mullenger Although produced buyer Morehead, 238 v. in Nickelsen discussed purchase willing to Pond also 195. See Iowa sell- terms conditions demanded Anderson, 1038, 44 N.W.2d 241 Iowa ers, buyers’ liability perform was ex- 372.” upon being pressly conditioned able to ob- mortgage tain from loan as- is not one the Denison The factual situation here loan, either in rule stated sociation. If unable to obtain the application of the buyers quote perform. had paragraph obligation no first or second Miller, supra. dispute Kruse unable to There is from White v. performance
obtain loan when was due October 1967. Under circumstance re the annotation statement not have an did enforceable principle set by the court and the lied on precedent since contract the condition quote paragraph fourth out right performance, obtain- seller’s Kruse to the same effect v. Miller from White loan, ing a had not occurred. rec for the rule there expressly state that be a ognized pertinent there must Rather, they had entered into valid, contract be binding or enforceable agreement buyers with the tentative words, buyer seller. In other tween the terms of to a subject condition to commission to be entitled broker precedent becoming binding to the contract finding purchas rendered for services loan enforceable be obtained. actually con land, no sale is where er pro This factual situation involves the fact relying on the summated and he is paragraph nouncement in the third made by entering buyer accepted the had seller Miller, supra, governed White v. and is agreement based into a tentative written by the rule stated cannot there. Plaintiff seller, broker by the terms authorized recover. buy. obligation to procure a valid findings plaintiff 100 N. The court’s effect- Flynn Jordal, ed a *9 327. W. risk of had the
conclusion by an er- induced by Kruse were formance HENDERSON, Appellant, Bertha E. materially af- view of law roneous decision. fected the HOSPITAL, JENNIE EDMUNDSON a factual situa- appropriate to rule of law Appellee, valid, binding enforceable tion where a Casualty Surety Co., Aetna & Insurance procured by the broker contract is Carrier. shown, have As we commission. No. 53965. before court. not the case Supreme Court of Iowa. of the seller’s For an excellent discussion Dobbs, liability see Ellsworth broker June 528, 543-558, Johnson, Inc. v. 50 N.J. 843,850-859, cited defendants.
A.2d reached, we have view of decision unnecessary consider other conten- argued by defendants the second
tions argument.
division of their brief the trial court to set
With directions to awarded
aside the defendants,
to enter the case
Reversed and remanded. concur, MOORE, except All C. Justices II and III and
J., who concurs Divisions result, BECKER, J., who concurs
specially.
BECKER, specially). (concurring Justice
I concur the result but dissent from holding I. Division
In this nonresident defendant case the
was served with
personam acquired no action. The court
jurisdiction as a result of such service and safely ignored the
defendant could an in action
notice. Amendment to quasi in no- rem action without further “reasonably
tice is not calculated to knowledge attempted ex- of jurisdiction
ercise and an
be heard.”
It is submitted that a careful examina- prayer plaintiff’s original prayer pe- and the of the amended
tition will the basis of show the lawsuit changed without notice. This does not
comport process. with due I would reverse ground.
on this