Richardson v. Turner

Jan 24, 1900
Reporters:
,
Before:
Given
Given, J.

I. It is conceded that unless this action ■was commenced on the third da.y of November, 1896, it is barred. Section 2532, Code 1873 (section 3450, Code 1897)r provides as follows: “Sec. 2532. Commencement of Action. The delivery of the original notice to the sheriff of the proper county with intent that it be served immediately, which intent shall be presumed unless the contrary appears, or “the actual service of that notice by another per*319feon, is a commencement of the action.” The contention whether or not this action was commenced on the third day of November, 1896, rests upon the following facts:’ On the third day of November, 1896, the plaintiff delivered to the sheriff of Kossuth county,- Iowa, — the county iii which the nóte was payable,- — an original notice for service, in due form, citing the defendant to-appear at the December term, 1896,‘of the district court of said county. This notice was served on the twenty-seventh day of November, 1896, on one IT. Turner, a person other than the defendant, but was not filed in the office of the clerk until the twenty-third, day of November, 1897. During the December term, 1896, it was ascertained that the IT. Turner served was not the defendant, II. Turner, who executed said note. On the- third day of February, 1897, a second original notice was delivered to the sheriff for service, citing the defendant to appear at the March term of said court. This notice was not served upon the defendant until the twenty seventh day of July, 1897, which was after the term to which the defendant was cited therein to appear. The defendant not appearing, on the ninth day- of November, 1897, a third Original notice was delivered to the •§heriif, citing the defendant to appear at the December term, 1897‘. This notice was not served in time for said term, and on the ninth day of December, 1897, said notice was changed so as to cite the defendant to appear at the February term, 1898, and delivered to the sheriff for service, and served on the defendant on the twenty-eighth day of December, 1897, whereupon the defendant appeared and filed his answer on the seventh day of March, 1898. It is conceded that the defendant has been an actual resident of this state, and has only occasionally been temporarily absent therefrom, ever since the giving of said note. Each of these original notices cited the defendant to appear on or before noon of the second day of the next term of the court, to commence on a day named, and it is conceded that ‘they *320could, not,, be served after the time allowed for service to the tprm.mentioned in the notice. It will be observed that the first.notice was served on the wrong person, the second after .the term to which the defendant was cited to appear, and,.the third not in time for the term named. Therefore there, was’ no legal service of any of these, nor until the fourth:notice, delivered for-service December 9, 1891, was ■served, citing the defendant to appear at the February term, 1898..

1 II. A number of cases are cited, but none of them directly applicable to this case, except Wolfenden v. Barry, 65 Iowa, 653. In that case an original notice was delivered to the sheriff for service on November 1, 1881; but he neglected to serve it, and made return thereon that the same had not been served, and delivered it to the plaintiff’s attorney by, whom it was lost. Nearly two years later another notice was put into the hands of the sheriff for service, and duly served. The question presented was, as in this case, when, under the statute, the action should bo held to have been commenced. This court said: “The plaintiff’s position is that the. action was commenced when the first notice was delivered to the- sheriff, and that,: having been commenced, it is immaterial whether that particular notice was delivered-or-not, or when the notice was served upon “whiclt the defendant was brought in; but,, in Our opinion, the plaintiff’s position- cannot be sustained. It seems to us to be manifest from the very nature of the case that the intent in regard to immediate- service of the notice should be a continuing intent When, the intent is abandoned before service; we do not think it can be treated as having any legal effect. The intention of having immediate service made was abandoned, and such abandonment had the effect, we think, to nullify the original intent, as any other intent is nullified which is abandoned before carried into execution. It-, -does not appear to us to be material, what motive the plaintiff had in withholding the *321notice until after several terms of court went by. * * * It is perhaps not material that the first notice Avas not served, or that the defendant was not brought in at the first term. lie might have been brought in at. a later térm, and upon a different notice, and it Avould probably have, been sufficient, if there had been nothing’ to shotv an abandonment of the intention of having immediate service made; but, under the facts in this case, we must hold that there Avas such abandonment, and the judgment must be affirmed.” The only distinction betAveen the facts of that case and this are that in that but two notices were delivered for service, while in this there were four, and in that longer time intervened between the delivery of the notices than in this. Our inquiry is whether, under the facts of this case, the plaintiff should be held to have had. a continuing intention to liaAe immediate service. When the time Avithin Avhich any •of these notices co-uld be served had expired without service, they became of no effect, and the plaintiff might at once ha\e manifested his intention to have immediate sendee by ■delivering another notice tO’ the sheriff for service to the next term. If this had been done, there would be no room to question that the plaintiff had such intention, but he did not do so-. He allowed’the Hay and October terms, 1397, to pass without, any effort to have a service to either of said terms, and thereafter delivered for service a notice for the February term, 1898. It is insisted that, to show a continuing intention to have immediate service, the plaintiff should have kept a live notice in the hands of the sheriff •continually until service was made, Avhile, on the other hand, it is said that it is sufficient to sIioav the required intention if he delivered a notice for service to each succeeding term until service Avas made. How this inay be, Ave need not determine, as it is entirely clear that in, this case two terms ■of court Avere permitted to pass without any attempt at having service. While the period elapsing between the *322delivery of the several notices in this case was not so. great as Wolfenden v. Barry, supra, we think the fact that the-plaintiff permitted two terms to pass without any effort, forth© service of notice should be held to. constitute an abandonment of the intention to. have immediate service of original notice. Our conclusion is that the judgment of the district court is correct, and it is affirmed.

Granger, C. J\, not sitting.