159 Iowa 230 | Iowa | 1913
In the action brought by plaintiff, appellant, and which was the first filed, the petition was filed December 7,1911, and on the same day an original notice was placed in the hands of the sheriff, which was served on Lester L. Stoner, Gertrude Stoner, and Richard Stoner on December 19, 1911. The other eleven defendants accepted service in the following manner: “We hereby accept due and legal service of the above notice for the February, 1912, term of Johnson county district court, and waive copy.” In the second case the petition was filed December 15, 1911, and some of the defendants were served December 13, 1911, others December 14, 1911, and the remainder on December 18, 1911. On February 8, 1912, the defendant in the first-named case, Lester L. Stoner, filed his answer in said cause, as follows: ‘ ‘ Comes now Lester L. Stoner, defendant above, and for answer to plaintiff’s petition states that at the time of the commencement of the above cause of action, to wit, December 19, 1911, there was another action pending between the same parties for the same cause, to wit, cause No. 17,016, Lester L. Stoner v. Frances E. Wray et al. Wherefore he prays that the cause of Frances E. Wray v. Henry A. Wray et al. be abated and dismissed at the plaintiff’s costs.” A trial was had on the plea in abatement, and on March 9, 1912, the court found that the case of Stoner v. Wray was legally commenced and pending prior to the ease of Frances E. Wray v. Plenry A.
The question here is: Which party has completed service first, and what are the rights of a party who has commenced another action? In Hakes v. Shupe, 27 Iowa, 465, the notice was served by an officer, but the return did not state the time when it was served. Default and judgment was rendered, but, on motion of defendants, was set aside, and this court said that the return was defective, in that it failed to state one of the three facts which the statute says it must state, to wit, the time of service, and that the only safe rule, in cases where jurisdiction depends upon the process, is to require a strict observance of the statute. And in Diltz v. Chambers, 2 G.
"We hold that the acknowledgment of service of the notice in this case, under the circumstances here shown, is of no validity as against Stoner, the plaintiff in another action, and that as to him parol evidence is not admissible to show the date; but we are not prepared to say that such an acceptance is void,.or that in no case would parol evidence be admissible to show the date. Our conclusion is that, for the reasons pointed out, appellant has not shown that her action was pending before Stoner’s case.
The action of the trial court is Affirmed.