Lead Opinion
On August 27, 1929, the plaintiff caused to be served upon the defendant, by leaving copy of notice with his wife at his place of residence, a purported original notice of which the following is a copy:
“Original Notice
“To C. M. Oxley and John W. Patterson
“You are hereby notified, That on or before the 31 day of August A.D. 1929 there.....filed in the office of the Clerk of the District Court of the State of Iowa, within and for the *1019 Story of Marshall, the petition of J. V. Rhodes claiming of you Judgment in the sum of Eight Hundred and Fifty-eight Dollars and Fifty-six cents ($858.56) with interest at'eight percent (8%) from and after August 22nd, 1929, together with costs, including statutory attorney’s fees.
“All on promissory note given by C. M. Oxley to John W. Pаtterson and assigned to plaintiff — the note being dated October 19, 1917, in the principal sum of Seven Hundred and Sixty (760.00).
“For further information see Petition tо be filed as aforesaid.
“Now, unless you appear and make defence thereto, at or before noon of the secоnd day of the next September term of said Court, to be begun and held at Nevada, Iowa, on the 16th day of September A.D. 1929, your default will be entered аnd a judgment rendered thereon as prayed for in said petition.
“Dated this 13th day of August A.D. 1929.
“J. Y. Rhodes,
Plaintiff.
“Ray P. Scott,
Attorney. ’ ’
The instrument thus served carried the title or caption:
“Original Notice
District Court
Marshall County”
This caption appeared upon the notice when folded in ordinary form.
Section 11055 of the present Code is as follows:
“11055. Original notice. Action in a court of record shall be commenced by serving the defendant with a notice, signed by the plaintiff or his attorney, informing him of the name of the plaintiff, that a petition is, or on or before the date named therein will be, filed in the office of the clerk of the court wherein action is brought, naming it, and stating in general terms the cause or causes thereof, and if it is for money, the amount thereof, аnd that unless he appears thereto and defends before noon of the second day of the term at which defendant is required to аppear, naming it, his default will be entered and judgment or decree rendered against him thereon.”
*1020 The question presented is whether' the fоregoing notice is so defective in form and so wanting in compliance with the requirements of the statute as to be wholly nugatory. It is not enоugh for the complaining defendant to show such a degree of defectiveness as would have entitled him to a continuance or to a setting aside of the default upon timely application for the purpose- of interposing defense. That is to say the question is nоt whether the notice is defective, but whether it is so defective as to be utterly void. . We have many cases dealing with the defects of original notices and have adopted a rule of considerable liberality in sustaining the jurisdiction of the court notwithstanding many defects in the original notice. Needless that we enumerate herein such cases. We have none that, as a precedent, is decisive of this ease.
Referring to the statute, three particular requisites may be noted: (1) the notice must inform the defendant “that a petition is, or on or before the date named therein will be filed”; (2) that the court in which thе petition is or will be filed shall be named-, (3) that the term at which defendant is required to appear, shall be named. It will be noted that none of the foregoing requisites were complied with unless it be by inference. The petition was actually filed in the district court for Story County. There is no direct statement in the original notice so advising the defendant. He was notified to appear at the “September term of said court”. The words “said court” рurport to relate to an antecedent for their meaning. But there was no antecedent which named the court. The notice did not state that a petition is filed. Nor did it state that it will be filed. It did notify the defendant to appear at Nevada, Iowa. This part of the notice carried an infеrence that the district court of Story County was the place of appearance. In such a case the defendant might naturally guess, and perhaps fully believe, that it was the jurisdiction of that court that was being asserted upon him. The question is how far may the specifiс requirements of the statute be condoned and the burden put upon- the defendant to exercise his powers of deduction. Suppоse for instance that this plaintiff had made one further mistake, if such, and had actually filed his petition in the district court of Marshall County. Might not the рlaintiff with equal plausibility contend that the notice contained sufficient reference to Marshall *1021 Comity to put the-defendant upon his inquiry аnd-thereby to discover - the filing place of the petition ? In short' the notice might be deemed sufficient to advise -the defendant that the asserted jurisdiction was either in Story County- or in Marshall County and yet fail to advise him with certainty which one. Notwithstanding our liberality -of- construction in supрort’ of the jurisdiction of the court, -there must be a limit to the 'privilege of" error; The specific requisites of the statute -are not to be wholly ignored. The statute provides for a certain degree of formality as requisite to confer jurisdiction. For- instance an original- notice must be in writing. - Oral notice, however emphatic or frequent, will confer no jurisdiction. If the writing is essential to the jurisdictional power'of the notice, then it would seem equally as essential that thé statutory-requisites should be-incorporated in such writing. - We are of opinion that the defects in this notice cut so deeply as to destroy its essential character as a statutory notice and that for such reason it shоuld be deemed not simply defective, but wholly void.
The motion therefore should have been sustained. — Reversed.
Dissenting Opinion
(dissenting) — It occurs to me that the'original notice under consideration is not more defective than many other notices sustainеd by this court.
The. following of our -cases are sufficiently illustrative: Lyon v. Byington,
In Cummings v. Landes,
In the long list of our cases involving defects in the original notice, a holding adverse to the sufficiency of such notice is rather excеptional. There is something to be said in condemnation of the negligent practice which results in defective notices. On the other hаnd great injury and practical injustice could result to innocent clients by too literal an interpretation of the statute. It is plain that sоme indulgence to the human frailties of the profession is in the interest of larger justicé to innocent clients. Nor does such indulgence need to work practical injustice to any one.
I would affirm.