185 Iowa 60 | Iowa | 1918
The case was submitted upon affidavits and certain exhibits. But we have a record of 288 pages, 147 of which are abstract and additional abstract.
This is an action at law, to recover forfeitures incurred by the defendant, as plaintiff alleges, for a violation of Section 1638 of the Code, by doing business in Iowa, as plaintiff says, without previously obtaining a valid permit from the state for that purpose. The defendant is a foreign corporation. Plaintiff asks to recover forfeitures in the amount of $100,000. The petition, filed November 6, 1914, alleges that, since July 18, 1910, defendant had unlawfully carried on its business of selling lands located in Montana to different parties; that it had done business at different cities and towns in the state. The trial court, in its ruling, did not pass upon the plaintiff’s right to recover against defendant by reason of the alleged forfeiture incurred, so that the only issues tried in the district court were in regard to certain pleas to the jurisdiction of the court, which were filed by the defendant. It is claimed that jurisdiction was obtained by service on three different persons, each of whom, it is claimed, was an agent of the defendant. The persons so served were J. W. Laughlin, Frank Snouffler, and D. E. Dalbey. The notice on Laughlin was served by the sheriff, November 6, 1914, in Linn County; the notice on Snouffer was served by the sheriff on March 8, 1915, in Linn County; and on March 20, 1915, Dalbey accepted service of said notice at Cedar Bapids, and recites as agent of the defendant company. These notices were served and filed at different times, and three separate pleas to the jurisdiction were filed by the defendant. Defendant filed affidavits and
“Comes now the defendant, and, appearing especially and only for the purpose of questioning the jurisdiction of the court herein, alleges:
“First. That it is a corporation organized and existing under the laws of the state of Montana, and is not a resident or citizen of the state of Iowa, and is not now and never has been transacting business in the state of Iowa.
“Second. That the original notice in this action was served upon one J. W. Laughlin, claimed to be an agent of the defendant, but that said J. W. Laughlin is not and was not, at the time of said alleged service, nor for a long time prior thereto, an agent or employe of this defendant, and never had any connection whatever, as agent or otherwise, with any of the transactions upon which the claim made in this suit is based, or out of which it grows; and the said J. W. Laughlin, at the time and for a long time prior to the service of the said original notice, had no right or authority whatever to represent this defendant as its agent in any capacity, or in reference to any matter, and had no right or authority to transact any business of any nature whatsoever for this defendant; and that, at the time of the alleged service of said notice upon the said J. W. Laughlin, this defendant had no office or agency in the state of Iowa for the transaction of any business whatsoever in charge of the said J. W. Laughlin or any other person.
“Third. That the alleged service does not confer any jurisdiction over defendant.
“Fourth. That, if the court should assume to assert jurisdiction under such service, the court would violate the
“Fifth. That defendant was engaged in interstate commerce, and was not at any time engaged in transacting business in Iowa.
“Wherefore, defendant moves the court to quash the return on said original notice, and to dismiss this action for want of jurisdiction.”
It is claimed by appellee that the present case is the outgrowth and aftermath of two suits brought in the courts of Cedar Rapids by J. W. Laughlin, one of the parties upon whom one of the original notices was served in this suit. It appears by defendant’s affidavits that said Laughlin claimed, in the two suits just referred to, that there were certain commissions due him from the defendant, and assigned his claim therefor to one Newman. Newman brought suit, and service of notice was attempted to be made upon a clerk in the employ of defendant in their office in Chicago, but who was temporarily in Cedar Rapids for the purpose of getting a traveling bag, which was the personal property of one Lemon, and upon J. W. Laughlin, the assignor of the claim. A plea to the jurisdiction was filed in that case, but the case was finally settled by stipulation, showing that Laughlin had .been paid more than the commissions due him. In the settlement, attorneys other than Rickel & Dennis represented Laughlin.
The other of said two suits was brought in the name of Herron against defendant on the claim assigned to him by Laughlin for $2,000 alleged commissions. Laughlin, assuming to act as agent for the defendant, accepted service of the original notice. Defendant’s affidavits show that
Thereafter, the instant suit was commenced. It should have been stated that defendant announced that it appeared specially.
“Any defendant may appear specially for the sole purpose of attacking the jurisdiction of the court. Such special appearance shall be announced at the time it is made and shall limit the party to jurisdictional matters only and shall give him no right to plead to the merits of the case.”
It will be noted that the statute quoted does not state how the question of jurisdiction may be raised. Appellant's contention is that, because Code Section 3561 provides that defendant may demur to the petition only where it appears on its face “that the court has no jurisdiction of the person of the defendant or the subject of the action,” defendant should have raised the question by answer, under Section 3563 of the Code, which provides:
“"When any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer.”
Appellant contends that this would present a question
In this case, the paper filed by defendant was designa! ed p plea to the jurisdiction, but the relief asked was by motion to quash the service. Without determining whether any other form of procedure would have been proper, we think this was so, for the purpose of determining'the jurisdiction of the person. The statutes of Iowa specifically authorize the use of affidavits to sustain controverted questions of fact arising on motions. Code Section 3833. And Code Section 3831 defines a motion as a written application for an order,- etc. It seems to have been the practice, in our courts and many others, to try such questions on motion, supported and resisted by affidavits. It is claimed by appellee that appellant waived any objection to the method of producing the evidence, by its filing affidavits in resistance, before plaintiff filed the motion to strike out the affidavits, and before raising the question as to the method of procedure. This may be so, but we do not determine.
“The rule * * * prevailing in the Illinois state courts is contrary to the general rule on the subject in this country, as well as in England. There is no more reason for requiring a plea in abatement and a jury trial to test the question of a sufficient service of a summons than there would be to require the same proceeding, including a jury trial, in all cases where now a motion is held to be the proper remedy. The constitutional right to a jury trial obtains whenever there is any question at issue involving the life, liberty or property of the citizen. But a motion to quash a. service of summons, or any other process or order, for insufficiency in the service, involves no such substantial right. * * * ' Another service can be made, and the action proceed. * *. * No substantial right is affected by the decision. There are many matters pending in the progress of the case which are daily determined upon motion that are much more important In affecting substantial rights than a motion to set aside an irregular service of process.Take, for instance, the motion for a new trial upon newly discovered evidence after the plaintiff has recovered a substantial verdict.”
The court also quotes the English rule to try such questions on affidavit, and the reasons therefor, and says that
This disposes of appellant’s claim that it was entitled to a jury trial unless the answer of the defendant was a plea to the merits.
i. It is strenuously urged by appellee that whatever the relations between it and the three persons named had theretofore been, at the time of the service and acceptance of notice, such relations had been terminated. It was stipulated on the hearing:
“That Dalbey removed from Cedar Bapids, Iowa, to Montana, about July, 1912, and has not been in Cedar
As to Snouffer, it appears that, early in 1912, an arrangement had been made by one Huntington with .Snouffer, — Snouffer being the editor of a newspaper in Cedar Rapids, — to run a “display ad” in his paper, with reference to the lands of defendant company, and that his compensation was to be a certain amount per acre on lands sold, out of commissions which would be due from the company to its soliciting agents, on account of sales made in Linn County; that this arrangement with Snouffer was to run a year, subject to termination at any time on 60 days’ notice. Plaintiff claims that the contract of Huntington was such .that he had authority to employ the subagent, Snouffer. But defendant denies that Huntington had any such authority,' and says that it knew nothing about the matter for a long time afterwards, and that the arrangement with Snouffer had long expired, and no further arrangement had ever been made.
The evidence of defendant shows, as to Laughlin, that he was not authorized to do the things which plaintiff says he did do, and which tended bo show that he was the agent for defendant. It is shown, too, that his relations with the company had been terminated prior to the service of notice. Indeed, as we understand appellant’s argument,this fact is not seriously disputed, for it is claimed that, as to Laughlin, the evidence shows that the matters of his agency were unadjusted and not fully closed, when service was made on him: that is, because there was some claim that there was money due Laughlin from the defendant company, — which the defendant denies. Its evidence, we think, sustains the defendant’s claim. Plaintiff further claims that,
6. The plaintiff filed a petition for the production of books and papers, which was denied by the court.- The defendant resisted such application, on the following grounds, among others:
We have examined the record with care; and, while there may be some other incidental matters discussed, it is our conclusion, upon the whole record, that the ruling of the trial court was right, and its judgment is, therefore,— Affirmed. \