# Krueger v. Lynch

> Supreme Court of Iowa · June 5, 1951 · 242 Iowa 772

URL: https://www.frixlaw.com/law-library/cases/9592366

## Case

- **Full name:** Edward W. Krueger, Appellant, v. Ralph N. Lynch, Appellee
- **Court:** Supreme Court of Iowa
- **Decided:** June 5, 1951
- **Citations:** 242 Iowa 772; 48 N.W.2d 266; 1951 Iowa Sup. LEXIS 374
- **Precedential status:** Published
- **Opinion:** Dissent by Mulroney
- **Judges:** Thompson, Wennerstrum, Smith, Bliss, Mantz, Garfield, Hays, Mulroney, Oliver
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9592366

## Opinion text

Mulroney, J.
(dissenting) — I respectfully dissent. -The majority feel that a number of prior decisions ■ of this court “approach the question -involved here but do not reach it.” I feel'they reach it and are determinative of the question in favor of the appellee. Since the prior decisions were befpr'e rules 50 and 53, Rules of Civil Procedure, we must first note the change which the rules made over the prior statutory requirements.
I. Rule 50 superseded. section .11055, .Code, 1939. The latter section contained the requirement in'part that defendant be served with a notice “stating * * * that unless -he. appears thereto- and defends before -noon of the second day .of the term at which defendant is required to appear, naming said term, and the date when and place where Said court will convene, his default will be entered and judgment or decree rendered against him thereon.” The requirement of rule 50 which superseded the above statute is that the notice “shall notify defendant !to- appear before said court within the specified number of .days after .service required by rule 53 or rule 54, and that unless he :so appears, his default will be entered etc.” It seems to me. perfectly obvious *781 that the rule change merely involved an abandonment of court term returnable dates and a substitution of so many days from service as returnable dates for all notices. By reference to rule 53 the returnable date required by rule 50 is now twenty days if the petition is attached or then on file and thirty days if the petition is not so attached or filed. The change from statute to rule was a change from one returnable-date requirement to another. The author’s comment (page 152) in Cook’s Iowa Rules of Civil Procedure with respect to rule 53 is: “This Rule is in line with the modern trend to disregard the term as a measuring rod for court action.” There was no change from the requirement that the original notice state a returnable date. With respect to rule 50, page 149, Cook’s comment is: “Where a copy is not attached, the provisions of Code, §11055 have been largely retained as to the contents of the notice.” (Italics supplied.) All notices and process in every jurisdiction upon which jurisdiction is based have always required a statement of the returnable date when the defendant is required to appear. It is admitted the case before us involves a notice with an incorrect returnable date. I do not think you can distinguish the many cases this court has decided involving notices with incorrect returnable dates as fixed by statute by merely saying they “approach but do not reach” the question involved.
II. About ninety-seven years ago in Hodges v. Brett, 4 (Greene) Iowa 345, at a time when the statute required that the notice state the hour when the defendant must appear on the return day, this court held a special appearance should have been sustained when the notice said “11 o’clock, M.” When it was claimed the objection was “trifling and technical” the opinion answered:
“But the rule resulting from the decision is important. Defendants are entitled to a specific and definite notice of proceedings against them. If the notice may omit the hour, may it not on the same principle omit the day or the month? The only safe rule, in cases where jurisdiction depends upon the process, is to require a strict observance of 1ho statute.”
In Boats v. Shules, 29 Iowa 507 , it appeared that the court term began on Monday, April 18, 1870, and the service of notice *782 on the defendant was regular and sufficient for this term except that the notice required the defendants to appear “ ‘on or before noon of the second day of the April term of the district court, to begin on the 12th day of April, 1870.’ ” The opinion holds the notice was insufficient; that defendants’ failure to appear on the second day of the April term did not constitute a default; and the trial court rightly set aside the default without requiring an affidavit of merit or reasonable excuse.
' Several other cases similar to the Boals case are reviewed in Fernekes & Bros. v. Case, 75 Iowa 152, 153, 154 , 39 N.W. 238, 239 . In the latter case the notice provided the defendant should appear for the August term and then said “to commence -on the thirtieth day of August.” The term commenced on the thirty-first day of August. The opinion cites many previous opinions of this court and holds: “We think that it must be held that the first notice was not merely a defective notice, but that it lacked an essential requirement of the statute, and that it was. no notice, and that the delivery of it to the sheriff, and its service, did not arrest the operation of the statute of limitations.”
We approved the rule of the Fernekes & Bros, case in Pendy v. Cole, 211 Iowa 199, 201 , 233 N.W. 47, 48 , where we said:
“But the alleged notice in this case purported to fix the date of 1he term as of a certain mistaken date. The incorporation of such mistaken date was necessarily misleading. In such a case we have held repeatedly that the mistake is fatal to the validity of the notice. Fernekes & Bros. v. Case, 75 Iowa 152 . The opinion in the cited case cites our previous decisions on the same subject.”
We approved the rule of the Boals and Pendy opinions in Union Savings Bk. & Tr. Co. v. Carter, 214 Iowa 1131 , 243 N.W. 523 , and Farley v. Carter, 222 Iowa 92, 94 , 269 N.W. 34, 35 . In Farley v. Carter, we held: “Bach of the specific requisites of the statute is of equal rank with the others, and a failure to include any one is as fatal as the failure to include another.”
The foregoing is sufficient to show this court’s adherence to the general rule that the too soon returnable date in a notice renders it void. Other cases where notices with returnable dates omitted, incorrect or uncertain have been held void are: Des *783 Moines Branch of the State Bank v. Van, 12 Iowa 523 , Van Vark v. Van Dam, 14 Iowa 232 , Decatur County v. Clements, 18 Iowa 536 , Kitsmiller v. Kitchen, 24 Iowa 163 , Haws v. Clark, 37 Iowa 355 , Jones & Magee Lbr. Co. v. Boggs, 63 Iowa 589 , 19 N.W. 678 , and Rhodes v. Oxley, 212 Iowa 1018 , 235 N.W. 919 .
The short opinion of Walters v. Blake, 100 Iowa 521, 522 , 69 N.W. 879, 880 , which the majority considers as the one Iowa decision in point has nothing to do with the contents of a returnable notice. The question there was as to the time of service and the term after service when default and judgment could be rendered. The opinion states that the statute, section 2602, Code, 1873 “has reference to the time of the service” and goes on to point out that the statute specifically provided “if not served in time for the term named therein, the defendant must appear at the next term.” The case has nothing to do with a question involving an original notice with a wrong returnable date. This is abundantly clear from the fact that this court has been called on many times to decide questions of original notices with wrong returnable dates and the Walters case has never been cited in any subsequent opinion of this court.
We leave the Iowa authorities with, I feel, a firm rule which has been established by our decisions as stated in the Union Savings Bk. & Tr. Co. case, supra, at page 1132 of 214 Iowa, “that an original notice which states an erroneous date for the commencement of the trial term of court is fatally defective md void.” (Italics supplied.) See also 23 Iowa L.- Rev. 246. The force of this rule is that an original notice whieh states an erroneous returnable date is void. We pass now to the authorities of other jurisdictions from which the majority draws support for their conclusions.
III. While there is'some authority in other jurisdictions for the majority view, the general rule is otherwise. In 42 Am. Jur., Process, section 15, page 16, it is stated:
“It seems generally agreed that a summons which is returnable too soon, that is, where there is less than the number of days required by statute between the date and the return day thereof, will be quashed on motion, although in many cases the courts have held that a summons returnable in less than the required time is merely irregular and may be amended.”
*784 An examination of the many eases collected in the notes in 6: A. L. R. 841 and 97 A. L. R. 746 shows that the American Jurisprudence appraisal of what is the general rule is correct. To these notes I merely add the following citations: State ex rel. Stanley v. Lujan, 42 N. M. 291, 294, 77 P.2d 178,179 ; Inhabitants of Dover-Foxcroft v. Inhabitants of Lincoln, 135 Maine 184 , 192 A. 700 ; North v. Town Real Estate Corp., 191 Md. 212 , 60 A.2d 665 ; Florence v. Swails, Tex., Civ. App., 85 S.W.2d 257 ; Thomas v. District Court, 110 Utah 245 , 171 P.2d 667 .
In State ex rel. Stanley v. Lujan, supra, the New Mexico Supreme Court quoted from an earlier decision of that court as follows: .
“ ‘Having determined that the summons was defective [in that it gave the party less time than that prescribed by' statute] in the manner hereinbefore pointed out, it becomes necessary to decide what results therefrom ® * *. The authorities upon this question are not harmonious. In fact, they are in hopeless conflict ; but we think the better reasoned cases support the view that such process is void and confers no jurisdiction whatever over the person of the defendants. For the various cases discussing the subject and arriving at their divergent views see the notes appended to Lockway v. Modern Woodmen of America, Ann. Cas. 1913A 555, and Flanery v. Kusha, 6 A. L. R. 838.’ ”
The majority opinion correctly states “we have no such practice in Iowa as the amendment of an original notice after service.” And when one examines the cases which seemingly uphold notices with incorrect returnable dates one generally finds the notice was a summons' or some form of process emanating from the -court and there was statutory sanction for-amendment., When the notice is a court process some authorities have stated the courts have general amendatory power, but as pointed out in Inhabitants of Dover-Foxcroft v. Inhabitants of Lincoln, supra, one usually finds in such cases “an entry of a general appearance.”
It is strange that the majority, after stating our practice does not admit of amendment of notice after service, proceeds to draw almost all'of its authority from jurisdictions which do. Lockway v. Modern Woodmen of America, 116 Minn. 115 , 133 *785 N.W. 398 , Ann. Cas. 1913A 555, is cited. A mere reading of the case shows there was involved a mistake in a summons — a court process — and a motion by the plaintiff that this summons be amended by inserting thirty (days) instead of twenty for the returnable date after service. The trial court ordered the summons amended and'the supreme court affirmed, holding certain Minnesota statutes allowing amendments to process were “ample to cover mistakes of this character.”
The same is true of Barker Co. v. Central West Inv. Co., 75 Neb. 43 , 105 N.W. 985 , cited by the majority. The opinion points out that the court has the power to amend under a statute permitting amendment of process.
The case of United Order of Good Samaritans v. Brooks, 168 Ark. 570, 571 , 270 S.W. 955, 956 , represents a decided minority view. The holding in that case is all summed up in the statement that a defendant who was served with a twenty-day notice, knew that he was entitled to thirty days “because the statute so provides.” The reasoning is unsound. The rule of presumptive knowledge of the law cannot be invoked to cure deviations from correctness by one who is asserting a right. One who is claiming against another cannot disregard the law, especially as to jurisdictional requirements, and rely on any rule that his opponent is presumed to know the law anyway so his mistakes were of no consequence. To so hold would mean that the original notice here would have been sufficient if the ultimatum was that defendant appear in one day or even forthwith. It would successfully write out of the rule the requirement that the notice state any certain returnable date. The rule of presumption of legal knowledge has never gone further than to prevent an excuse of ignorance of the law as immunity from punishment for violation of a'criminal statute or liability for invading personal or property rights. I feel the majority opinion is a clear direction to the form printing companies to print twenty days in all notice forms. If the service is always to be good in thirty days if the petition is not filed or attached there is no reason to run the hazard of mistake or even ignorance of counsel as to the rule requirements.
IV. There is some mention in the majority opinion of the printed sentence in the notice: “Note: If petition is neither *786 filed nor copy attached, appearance date must be 30 days.” The majority does not rest its decision on the above sentence as being compliance with the rule, but it states this sentence should “foreclose any fair complaint by the defendant.” The sentence was obviously a direction to' the user of the printed form. It was no part of the original notice. This sentence, like the rule on which it is based, was ignored by the form user here.
V. Finally the majority feel that to uphold the special appearance would be defeating the manifest spirit and purpose of the rules and “ultratechnical.” As the majority admit, the decision of this case involves no interpretation of the rules. It is merely a question of whether the rule as to the contents of the notice is to be observed. It is immaterial whether it was oversight or clerical error as plaintiff here alleged. As stated in Inhabitants of Dover-Foxcroft v. Inhabitants :of Lincoln, supra, at page 186 of 135 Maine, where the summons named a past returnable date “the test to be applied is not sheer error from want of care, but blunder going to substance.”
The requirement that an original notice name a certain returnable date is not a mere technical provision. Some such requirement will be found in all notice statutes upon which jurisdiction is based. A holding that such a requirement should be observed is not, in my opinion, an “ultratechnical holding.” If it is, then this court made many such holdings when requiring strict observance of the statute which made the next term the returnable date. The answer to this “technical” charge, made by this court nearly a century ago in Hodges v. Brett, supra, at page 345 of 4 (Greene) Iowa is, I feel, still sound. There we answered: “But the rule resulting from the decision is important.” As I read the majority opinion the resulting rule means the plaintiff can safely give any returnable date in an original notice less than the number of days required by the rules. Carried to its logical conclusion it would mean the returnable date can be eliminated entirely. I would affirm.
Oliver, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9592366. Public record. Not legal advice.