Niagara Insurance v. Rodecker

| Iowa | Oct 20, 1877

Rotiirock, J.

i judgment: ' oniei'oi i°nqmry. I. No evidence was taken as to the validity of the defense set up in the answer accompanying the petition set asid° the default and judgment. The court below seems to have proceeded first to try and decide upon the grounds to vacate the judgment, before trying or deciding upon the validity of the defense. This may be done under Sec. 3160 of the Code. Having decided that the grounds to vacate were not sufficient, it was unnecessary to go into the inquiry as to the validity of the defense.

• If it had been found that the company was not negligent in law or fact, in not sooner appearing to the action, then before the judgment could be vacated the validity of the defense must have been tried and determined. Not only the sufficiency of the answer upon its face, but the truth of its averments, must be determined.

We think this is the proper construction of Chapter 1, Title 19 of the Code.

% ---:insnrupon'agent!00 II. It is urged by counsel for appellant that the showing made to vacate is sufficient on the ground of “fraud practiced by the successful party in obtaining the judgment.” It is claimed that the service of the original notice upon Ingersoll was illegal and fraudulent.

It appears from the evidence that Ingersoll, Iiowell & Co. were the duly appointed agents of the company in Des Moines- and vicinity. It further appears that said company.had filed with the Auditor of State a written instrument authorizing any agent or agents of said company in this State to acknowli edge service of process for and in behalf of said company, in this State, consenting that service of process, mesne or final, upon any such agent or agents shall be taken and held as valid as if service were had upon said company, according to the laws and practice of said State or of any other State.

The..company was required to thus submit to the jurisdiction of the courts of this State as a condition to the transacr tion of business within the State. Code, § 1144. The loss occurred in Guthrie county, and it was the right of the assured to commence their action in that county. Code, § 2584.

In our opinion service of process may be made upon any agent of the company within the State, under See. 1144 of the Code, and the provisions, of that section are not modified or controlled by other sections of the. statute as claimed in argument. It follows that if the original notice was served upon the proper agent the company was bound thereby, and that ■such service was not fraudulent.

_._. casualty. III. It is further urged that the facts show the judgment ■should have been vacated under Sec. 3154 of the Code, for unavoidable casualty or misfortune preventing the company from defending.

Ingersoll, the agent upon whom service was made, testified in his examination in chief that when the notices were served he took an envelop with printed directions to the general agents of the company located in Chicago, with their address upon it, put the notices in the envelop, sealed it, and put it into the mail at Des Moines, and addressed to Chicago.

It will be observed that he does not state that he put the envelop containing the notices in the post-office at Des Moines. In his cross-examination he states that his recollection is he put this letter into a basket in his main office, and yet may have put it in a pigeon hole; that the mail of the firm was made up and put in a pigeon hole or basket until sent to the post-office. It will be observed that the witness does not pretend to state that the envelop with the enclosure was actually deposited in the post-office. He is certain that it was, but his belief is founded upon the fast that letters deposited in - the basket or pigeon hole were taken to the post-office by some one, usually by some member of the firm.

David Beveridge, the general agent of the company at Chicago, testified that the envelop with the notices enclosed never reached said agency in Chicago.

It is not claimed that there was any accident at or about that time, by which the mails between Des Moines and Chicago were destroyed or delayed.

In view of the almost unerring certainty in the transmission of the mails in this country, which is well known to all men, we think the court below was justified in finding from the evidence that the envelop in question was not deposited in the post-office at Des Moines, or at least that the fact was not established by a preponderance of evidence.

"We have not given all the evidence, nor is it necessary. It •may be proper, however; to say that the witness Ingersoll did not regard the pendency of the suit as a matter to which he should give attention. Ho did not write any letter to the general agency upon the subject. The service of the notices made so slight an impression upon his mind that, when his attention was afterward called to it, his recollection of the transaction was at that time indefinite. In view of all the evidence, we cannot say that the court erred in denying the prayer of plaintiff’s petition, or that there is such a want of evidence to support the finding as to justify our interference.

Affirmed.