Clark v. Little

Day, J. —

i. origiuat, fectwe serv106- The Code of 1851, in force at the time the judgment sued on was rendered, provides: “ The service is to be made by reading the notice to the defendant and giving him a copy if demanded. If not found he may be served by a copy left at his usual place of residence with some member of the family over fourteen years of age.”

' “ The return must state the time and manner of making the service. If made by leaving a copy, as aforesaid, it must state at whose house, and the name of the person with whom the same was left, or a sufficient reason must be given for omitting to do so.” §§ 1721, 1723. Tested by the requirements of these sections, the return appears to be defective in several respects. It does not state that the defendant could not be found. It does not state at whose house the copy was left. It does not state the copy was left at the usual place of residence of defendant. It does not state the name of the person with whom the copy was left. That these are sub *500 stantial defects, for which, the judgment would have been reversed on appeal, see Converse v. Warren, 4 Iowa, 158 ; Davis v. Bush, 7 Iowa, 36 ; Chittenden v. Hobbs, 9 Iowa, 417 ; Tavenor v. Reed, 10 Iowa, 416 ; Sidles v. Reed, 10 Iowa, 589 ; Eikenburg v. Barrett, 10 Iowa, 593 .

2 jvbisdicupon: ^idgrnent. The record does not show that the court made any adjudication as to the sufficiency of the return. In Muscatine Turnverein v. Funck, 18 Iowa, 469 , it was deci^ed the court in rendering judgment by default must have determined the sufficiency of the service. But this action was tried under the Revision and the decision is. based upon section 3149, which is not found in the Code of 1851. If the record had shown an adjudication of the sufficiency of the service, it may be that the return would not be held so defective as to render the judgment vulnerable to a collateral attack. See Shawhan v. Loffer, 24 Iowa, 217 , and cases. Not only is there here no adjudication of the sufficiency of the return, but the defense interposed in this case cannot fairly be regarded as an attempt to impeach the judgment collaterally.

An action is brought upon the judgment and it is sought to make it the basis of a new recovery. In such case it is always permissible to show that the court rendering the judgment had no jurisdiction. See Dobson v. Pearce, 1 Duer, 144, s. c. 12 N. Y., 165 .

The defendant by proper answer assails the validity of this judgment, attacks it directly, and avers th^t he had no notice of the pendency of the action, and that the court acquired no jurisdiction of his person. See Dunlap v. Cady, 31 Iowa, 260; Whetstone v. Whetstone, Id., 276 .

The real question here, then, is not, did the court decide that it had jurisdiction, but did the court in fact have jurisdiction. In McGahen v. Carr, 6 Iowa, 331 , it was held that, although the decree may recite that it appeared to the court that the defendant had been served with notice of the pend-ency of suit, as required by law, the complainant, in proceeding to set the decree aside, may aver and prove that copies of the petition and notice were never directed to him, as reqixired *501 by section 1826, of tbe Code of 1851. See, also, to the same effect, Hodson v. Tebbetts, 16 Iowa, 97 .

In Newcombe v. Dewey, 27 Iowa, 381 , it was held that in a direct proceeding to set a judgment aside, it may be shown that the court had no jurisdiction of the person of the defendant, notwithstanding the judgment recites that he was duly and legally served with notice of the pendency of the suit. See, also, Stone v. Skerry, 31 Iowa, 582 ; Harris v. Hardeman, 14 Howard, 334 .

3.-: —•: As we have before seen, the return is essentially defective, and does not even show the existence of the fact which alone renders such substituted service proper; the court did not, as appears from the record, adjudicate that due service had been made, and it is competent for defendant to aver and prove that no jurisdiction was acquired over his person, which is in the nature, not of a collateral, but of a direct attack upon the judgment. Without further elaboration, we are of opinion that the court did not err in holding that there was no proper service of notice in the action in which the judgment sued on was obtained, and that it cannot be made the basis of a recovery.

.Aeeiemed.