Cummings v. Landes

Ladd, C. J.

— The allegations of the petition were such *82 that the demurrer was erroneously sustained if it shall be found that no notice of a suit for the foreclosure of a mortgage on eighty acres of land begun in 1903 was served on the plaintiffs, for in that event it appeared therefrom that each of them owned a one-sixth interest therein. If it be found otherwise, the ruling on the demurrer was correct. As is alleged, a printed copy of the original notice was pasted on a piece of paper, and the return of service by the sheriff is that he served this on plaintiffs’ then under fourteen years of age, “by reading the same to each of them, and delivering each a true copy thereof in the presence and hearing of their mother, Mrs. Alice M. Cummings, at her usual place of residence in Des Moines township, Yan Burén County, Iowa.” The alleged notice required them to appear on the 5th day of January, 1903, and this notice was served, if at all, on February 19th of the same year, and decree was entered March 18, 1903. An acknowledgment of timely service was indorsed, by Alice M. Cummings, but long after the time fixed in the notice. The points raised by appellants are that (1) the original notice was not signed by plaintiff or his attorney; (2) that the return shows that it was not served as required by statute; (3) that the time fixed for appearance was long previous to that of service.

i original nodency nature thereto. I. Our statute requires that the original notice be “signed by the plaintiff or his attorney.” This is to authenticate it as coming from the plaintiff in the action, wr^ien signature is not in terms exacted, To sign, in the primary sense of that ex-preggj0Ilj means to make a mark, and the signature is the sign thus made. By long usage, however, influenced no doubt by the spread of learning, signature has come ordinarily to be understood to mean the name of a person attached to something by himself, and therefore to be nearly synonymous with “autograph.” This signification is derivative, however, and not inherent in *83 the word itself. In re Walker’s Estate, 110 Cal. 387 ( 42 Pac. 815 , 30 L. R. A. 460, 52 Am. St. Pep. 104). Looking at the original meaning of the word, in connection with the usage since the people generally hare become able to write their own names, we have no trouble in reaching the conclusion that, as employed in the statute, no more is exacted than that the name of plaintiff or that of his attorney .be attached to the notice by any of the known methods of impressing the name on paper whether this be in writing, printing, or lithographing, provided it is done with the intention of signing or be adopted in issuing the original notice for service. Loughren v. Bonniwell, 125 Iowa, 518 ; Herrick v. Morrill, 37 Minn. 250 ( 33 N. W. 849 , 5 Am. St. Rep. 841 ); Mechen v. More, 54 Wis. 214 ( 11 N. W. 534 ) ; Hamilton v. State, 103 Ind. 96 ( 2 N. E. 299 , 53 Am. Pep. 491), and note. Hoitt v. Skinner, 99 Iowa, 360 , and Doerr v. Life Ass’n, 92 Iowa, 39 , are not in point, as in neither was there any signature whatever. ■ As the plaintiff in the foreclosure suit presented the notice signed by his attorney to the court procured a decree to be entered, based on its sufficiency, it will be assumed, in the absence of .any showing to the contrary, that he had adopted the printed signature, and that the court so found.

2. Same: time for appearanee: jurisdiction. II. The notice was addressed to Alice M. Cummings, Jessie L. Cummings, Perry M. Cummings, widow and heirs of Ereemont Cummings, deceased, and required them-to appear and defend “before noon of the second day of the January term, A. D. 1903, of said court, which will convene at Keosauqua, Iowa, on the 5th day of January, 1903.” The only proof of service was an acknowledgment thereof indorsed on the notice subsequent to said January term in words following: “I, Alice M. Cummings, hereby accept due, timely, and legal service of the opposite notice waiving time and copy thereof. Alice M. Cummings.” Also a return *84 of the sheriff that on the 19th day of February, 1903, he “served the same on Perry M. Cummings and on Charles PI. Cummings, minors, by reading the same to each of them, and delivering to each a true- copy thereof, in the presence and hearing of their mother, Mrs. Alice M. Cummings, at her usual place of residence” in the county. Even though service had been in accord with the requirement of the statute, it was served long after the time fixed for appearance, which for this reason was at an impossible date. The statute exacting the designation in the notice of the time and place for the appearance of the persons served always has been held to be mandatory, and the service of a notice, not containing such designation, confers no jurisdiction. Kitsmiller v. Kitchen, 24 Iowa, 163 ; Fernekes v. Case, 75 Iowa, 152 ; Haws v. Clark, 37 Iowa, 355 ; Genther v. Fuller, 36 Iowa, 604 . In the last case the point here involved was decided; the only difference being in that service was by publication. To name an impossible day is equivalent to naming no day at all, and such an omission renders the notice not merely defective, b.ut no notice at all. The distinction between such a notice and those which are defective merely is clearly pointed out in. Lyon v. Vanatta, 35 Iowa, 521 . Where the notice is so wanting in the requirements made essential by the statute as not to constitute any notice when served, the court-is without jurisdiction and without authority even to appoint a guardian ad litem. Allen v. Saylor, 14 Iowa, 435 ; Mooney v. Maas, 22 Iowa, 380 .

3. Same: service upon minors. The service was not such as exacted in order to confer jurisdiction of the minors. Section 3533 of the Code provides -that, “if the defendant is a minor under fourteen years of age, the service must be t • c i •% _. _ on his lather or mother, or guardian, but if there be none of these within the State, then on the person therein having the caro of and control over him, or with whom he resides or in whose service he is em *85 ployed.” Service was not effected by the acts described in the sheriff’s return. Because of their disability this could have been effected only by service on the mother in their behalf.

4' ' Disregarding the sheriff’s return, then, we inquire whether the acknowledgment of service by the mother conferred jurisdiction over these children. She was a party to the action, and apparently acted for herself alone. She was neither served with notice as mother of the minors, nor did she acknowledge service as such for them. Nor is there anything in the acknowledgment to justify the inference that she intended to accept service for them. Acknowledgment of service of a notice is one of the statutory modes of service (section 3518, Code) ; and probably the mother might have bound her children by accepting service in their behalf. McCartney v. City of Washington, 124 Iowa, 382 . But she did not do so, and for all that appears she might have acknowledged service on herself without noticing that the minors were made parties, as the acknowledgment did not involve the receipt of a copy of the notice. The statute of Alabama required, in order to confer jurisdiction on infants under fourteen years of age, service on them also, and in Hodges v. Wise, 16 Ala. 509 , all were defendants in the action, and service was had on the minors and also on the parent, but not as parent of the minors, and the court held that jurisdiction was not acquired to appoint a guardian ad litem for them. In Morgan v. Morgan, 45 S. C. 323 ( 23 S. E. 64 ), service was accepted by plaintiff in the action as guardian of the defendant minors, and it was held that jurisdiction of the latter was not acquired, but this was put on the ground that, owing to the adversary character of the proceedings, the guardian was not in a situation to act for his wards. In Rodgers v. Rodgers, 17 Ky. Law 358 ( 31 S. W. 139 ), the circumstances were such that jurisdiction of the minors could *86 be acquired only by service of process on the minors and their' mother, all of whom were defendants. The sheriff’s return did not show that a copy was delivered the mother as such for the minors, but it was held that, as she receivéd a copy for herself, an additional copy -would have added nothing to her information, and that, as the object of the law exacting a delivery of a copy of the summons to her as mother of the minors had been accomplished, the service was effective in conferring jurisdiction. , The design of service on the parent, guardian, or other person having the minor in his custody is to direct the attention of one likely to be interested in the minor to the fact that he is sued, to the end that his rights may be the more certainly and effectually guarded. If the service of notice, .though not precisely as enjoined by statute, is such as certainly must have conveyed this information, it would seem to be such as at least to invoke the jurisdiction of the court to pass on its sufficiency. It will be observed that the last decision is not decisive, as the mother in that action actually received a copy of the notice. It may well be doubted whether personal acknowledgment of service may be construed as necessarily conveying the above information.

5 of service of If it be so conceded, however, it does not follow that one not acting in a representative capacity or in some way authorized so to- do may waive service of notice for another, either by appearance in court for or by acknowledging for them timely service after the date fixed for appearance. Every one is entitled to his day in court, and through notice to be afforded an opportunity of being heard, and this carinot be abrogated by the unauthorized act of one upon whom notice is directed to be served for them. See Gray v. Palmer, 9 Cal. 616 ; Kansas City, St. J. & C. B. R. Co. v. Campbell, 62 Mo. 585 . The statute does not authorize the parent or guardian to waive service nor timely service *87 thereof, and, even though the acknowledgment had been of service by the mother for the minors, as it was of a notice fixing an impossible date for appearance, it did not confer jurisdiction.

6‘ SofS&i' In the absence of service of notice for the minors, the court was without jurisdiction to appoint a guardian ad litem, and the decree, if rendered on the service of notice alleged, is void. Good v. Norley, 28 Iowa, 188 . See Rice v. Bolton, 126 Iowa, 654 ; Dohms v. Mason, 76 Iowa, 723 . The suggestión that want of notice was not well pleaded is without merit, as is also the argument based on the thought that the decree is.alleged to be voidable merely. According to the petition, it is void, and therefore the suit could not well be maintained under section 4091 of the Code. .For the reasons stated, the ruling on the demurrer was erroneous. Reversed.