David Bradley Manufacturing Co. v. Burrhus

Bishop, J.

*326

1. Appeal: presentation of error.

*325 The motion was supported by an affidavit to the effect that the residence of Burrhus at all the times in question was in the incorporated town of Quasqueton, a town *326 situated within the boundary lines of Liberty township, in Buchanan county. The fact thus set forth was not denied by plaintiff, and on such affidavit, and the matters of record in the case, the motion was submitted. It is suggested by counsel for appellant in argument in this court that defendant had no right to proceed by motion; that his only remedy was by petition under Code, section 4091 et seqhaving relation to the vacation or modification of judgments after the term at which entered. We shall not enter upon a discussion of this question of practice. Plaintiff appeared to the motion as filed in the court below, and filed resistance based on the grounds: First, that the return of service as made was sufficient to confer jurisdiction on the court; second, that defendant not only had actual knowledge of the pendency of the action as against him, but had actual notice of the service of the original notice upon his wife at his place of residence, as stated in the officer’s return. No question was made respecting the form of the proceeding, and, as the court had jurisdiction of the subject-matter and the parties, the objection as now presented in this court comes too late.

2. Substituted service: vacation of judgment. The first question, then, with which we have to deal is, stated generally: Did the court have jurisdiction in fact to render the default judgment? While the question is not altogether free from difficulty, we are agreed that it should be answered, as it was answered by the court below, in the negative. To begin with, it is clear that essential to authority to proceed to judgment there must be not only service of notice, but a return of service. 18 Ency. of Pleading & Practice, 905. Now, as provided by statute, one method of making service of notice is by substitution; that is, by leaving a copy at the usual place of residence of the defendant with some member of his family, etc., when the defendant is not found within the county of his residence. Code, section 3518. And in respect of the required return, it must state at whose house *327 the copy was left, “ and that it was the usual place of residence of the defendant, and the township, town or city in which the house was situated, the name of the person with whom the same was left,” etc. Code, section 3519. These provisions of statute must he considered mandatory in character. The method of procedure is extraordinary in character, and allowable only because specifically authorized; and, in common with other legislative acts which mark a departure from the ordinary, the provisions must be strictly construed in the sense, at least, that the operation thereof may not be abridged or extended by the courts. Bell v. Stevens, 116 Iowa, 451 .

Now, it will be observed that on its face the return of service indorsed on the notice here in question made showing that all the' requirements of the statute had been complied with. This being true, we have a case of false return, and not a case of defective or incomplete return, as argued by counsel for appellant. And the return is confessedly false, in that the place of residence of the defendant and the place of making service was therein incorrectly stated. From this, the question takes on this specific form: Is the failure of an officer to correctly state the facts respecting a substituted service made by him fatal to jurisdiction ? As ground for questioning the validity of a judgment, a direct attack upon the return of an officer is proper to be made under the rule of this court. Wyland v. Frost, 75 Iowa, 209 ; Browning v. Gosnell, 91 Iowa, 448 . And it would seem that a denial of jurisdiction ought to follow where, under an attack coming thus, it is made to appear that the false statement was of and concerning any matter made material by the statute to perfect service. Under the statute, substituted service can be made in but one place, and that the place of residence of the defendant. If made elsewhere, it is of no effect. And this was regarded of such materiality that the requirement was included that the officer must not only certify to the fact of service as having occurred at the place, but he must *328 certify to the township, town, or city in which such place is located and can be found. As said in Le Grand v. Fairall, 86 Iowa, 211 : “ The statute is the only authority for a substituted service, and the facts to justify it must appear.” It is not enough, therefore, that the copy of the notice was left at the right place, and with a proper person: the return must show the facts, and show them truthfully. It is the return upon which authority to proceed depends, and as the court would not enter a judgment upon a false return, if advised in advance, it should be free to set aside, as between the parties, at least, when subsequently the falsehood is made to appear. While not decided, we think that from the opinion in Ketchum v. White, 12 Iowa, 193 , the plain inference may be drawn that the court took the view that, if a return of substituted service as made by an officer is false, the judgment, on direct attack, should be set aside. The case, however, went off on failure of proof to establish the falsity in the return as alleged. We have no need to consider the many cases called to our attention in which the effect of" a defective or incomplete service or return is discussed. Most of them deal with instances of personal service, and, where substituted service is the subject, the question here made was not involved.

But counsel for appellant seem to think that the false’ statement of the return should not be regarded as fatal, inasmuch as the town of Quasqueton was situated within the limits of Liberty township, and hence in the material sense the service was in that township. In view of the language of the statute, this cannot be accepted as correct. As we have seen, the statute demands strict compliance, and an officer is not at liberty to act otherwise than as directed either as to service or return. Now, towns and townships are distinct entities, and it must be considered that the Legislature had a purpose in requiring that a return must state specifically in what particular township, town, or city service was made. We need not stop for extended inquiry in respect *329 of such, purpose. It is enough that in authorizing an extraordinary proceeding the material requirements to valid action are set forth, and it is not for us to say that any one of these requirements so made material may be dispensed with without infraction of the legislative purpose and intention.

3. Jurisdiction of parties notice: Coming to the second question as made in the case, it need only be said that, as the statute prescribes the method of bringing a party into the court, it can be done in no other way; and the cases are uniform to the , . . effect that his knowledge otherwise acquired, of the pendency of the proceedings, is matter of no moment. He is not chargeable until he becomes a party, and he can be made a party only by proper service of notice or by voluntary appearance. •

On the considerations thus expressed, we reach the conclusion that the ruling of the trial court should be, and it is, affirmed.