« SebelumnyaLanjutkan »
A garnishee is such a party as to proceed against him in the court be entitled to change of venue, and where commenced: Westphal 0. where he does not join in an applica-Clark, 42—371. tion for the change, the cause wiil!
Sec. 2595. Upon filing such transcript and papers in the office Docketed. of the clerk of the court to which the same were certified, the R SUS. C. 31, 2 1711. cause shall be docketed without fee and proceeded in as though
it had originated therein.
Sec. 2596. Unless the change be granted under subdivision Costs of
two, four, or five, of section two thousand five hundred and ninety (hange.
of this chapter, all costs caused thereby or that are rendered useC. 31, 2 1712.
less by reason thereof, shall be paid by the applicant, and the court, or judge, at the time of making the order, shall designate in general terms such costs, and no change shall be deemed perfected until such costs are paid.
The applicant should be charged! The clerk's fee for entering order of not only with the costs of the tran- change is part of the cost to be paid script but also with the costs of the by the applicant: Stryker v. Rirers, term: Allen v. Skitt", 2-433. 147-108.
Sec. 2597. Where the place of trial in any civil action is Jury to be paid changed to any county other than that in which the same was by county from which change Pop
properly commenced, where the trial thereof takes place at a regular term, and occupies more than one calendar day, the judge trying said case shall certify the number of days so occupied, and the county in which the case was originally commenced shall be liable to the county where the same is tried for the sum of two dollars per day for each juryman engaged in the trial thereof.
Sec. 2598. Where a special term of any court is held for the In case special trial of any action contemplated in the preceding section, the
court trying the same shall make out and certify the amount of Same, & 2.
county expenses incurred in the trial of each case, and the same shall be a legal and valid claim against the county in which the same was properly commenced.
is taken. 11 G. 1. ch
term is held.
OF THE MANNER OF COMENCING ACTIONS.
SECTION 2599. Actions in a court of record shall be comNotice
menced by serving the defendant with a notice signed by the RR 2011-2812. plaintiff or his attorney, informing the defendant of the naine of C. '51,2 1714,
the plaintiff, and that on or before a date therein named, a petition will be filed in the office of the clerk of the court wherein suit is brought, naming it, and stating in general terms the cause or causes of action, and if the action is for money, the amount thereof, and that unless he appears thereto and defends before poon of the second day of the term at which defendant is required to appear, naming it, or at such other time as may be by rule of such court prescribed, default will be entered against him and judgment rendered thereon. In all cases where the time for the commencement of the term has been changed after the notice has been served, the defendant shall be held to appear at the time to which such term has been so changed.
The original notice should fix, by I plaintiff's claim, or the remedy sought, name, the term at which defendant is as well as of the amount of recovery required to appear. (Explaining asked: Harkins v. Edwards, 1-296; Lamonds 1. French, 4 Gr. 1233, and Moodly v. Taylor', 12-71. Butcher 0. Brand, 6-235): Des Notice of an action to foreclose a Moines Brinch, etc., v. Van, 12-523; mortgage, without claiming any spePan Vark v. Van Dam, 14-232; and cific sum, held, sufficient to warrant a a notice requiring defendant to ap- personal judgment for the amount pear " on or before noon of the second due, as provided in $ 3:21: York v. day of the next regular term, etc.," Boardman, 40-57. but not naming the term, is defective: In an action upon a note and mortDecatur ('0. r. Clements, 18-536; but gage, the note being given by one dea notice requiring defendant to "ap- fendant, and the mortgage to secure par and answer on or before noon of it by another, held, that a notice dithe 15th day, etc.,” it appearing that rected to both of them stating that the day named was the second day of plaintiff claimed of them judgment on the next terin, was held sufficient, al- the note and foreclosu 'e of the mortthough the term was not named:gage, etc., was sufficient: Hickman v. Kupp . Haight, 2:3-75; and where Chambers 10–>01. u notice required defendant to ap- A not ce stating the claim as upon pear " on or before the 29th day, etc., a promissory note, when it was in being the second day of the next fact upon a quaranty of a non-negoterm," etc., whereas that day was, tiable instrument, held, suficient: in fact, the fourth day of the term, | Peilicoril v. Whittam, 9–171. held, that it was not error to refuse In the original notice in an action to set asiile a defaut rendered on the for divorce, it is not necessary to 29th, there being no showing that state that alimony is claimed. It is defendant had been misled: Burr r. allowed as an incident of the main Wilcox, 19-31; also, a notice giving action: McEwen v. McEwen, 26– the date of the commencement of the 375); Dirrou 1. Darrou', 4:3-411. term, but not otherwise naming it, i Where a notice was placed in the held sufficient: Famers' Ins. Co. v. hands of the officer for service on the Highsmith, 44-330.
ist day of a month, but not actually Notice requiring defendant to ap- served until the sd, and the debt pear on the second day of the April, came due on the 2nd, held, that the term, “commencing April 12th,' &c., action was not actually commenced when the term really commenced until the 3d and not until after the April 18th, held insufficient : Boales debt bec:ime due, $ 25:32 not being r. Shules, 29-507; a notice requiring applicable in such a case: Parkyn v. an appearance at a date prior to the Traris, 50-436. termi is void and confers no jurisdic- Though the notice be irregular and tion: Haus v. Clark, 37–15.
insufficient, yet, if the court takes After proper service of notice is jurisdiction to render judgment, the made, a subsequent change in the error can only be taken advantage of time of holding the term of court on appeal. The judgment is not will not render the notice insufficient, thereliy rendered voidl: Moody 1. and defendant must appear at the Taylor, 12-71; Woodbury . Vcterm as so changed : Peoria M. & F. Guire, 42–339; De Tar v. Boone Co., Ins. Co. v. Dickerson, 25-274.
334-483, and cases therein cited, and A notice which does not state when see, also, notes to $ 2604. Such deor where (i. e., in what court) de fect cannot be taken advantage of on fendant is required to appear, is fatal- appeal, unless a motion to correct the ly defective, and a judgment rendered irregularity has been made in the thereon is void, and may be colla'er- court below: See notes to $ 3168. ally attacked: Kitsmiller v. Kitchen, The original notice is not a process 2+163; but it is not necessary that of the court and need not bg in the the name of the city or town in which style of “The State of Iowa" (Const. the court is to be held should be art. 5. $ 8): Nichols v. Burlington, stated: Bon i r. Epley, 48-600. etc., Plank Roail Co., 4 Gr. 42;
The notice is not to set forth the Klingel v Palmer, 42–166. cause of action in detail, but the de- A process in the nature of a sumfendant should be informed with re - mons or subpoena in chancery, held, sonable certainty as to the nature of not sufficiently in compliance with the
requirements of the statute to be good | As to effect of misnomer of defendas an original notice: McKee v. Har- ant in the notice, see note to $ 2603. ris, 1-364.
SEC. 2600. If the petition is not filed by the date thus fixed, and ten days before the terın, the action will be deemed discontinued.
The petition must be filed by the the time of such service but not at date fixed in the notice or the action the time fixed, held, that the delendwill be deemed discontinued, (ex- ant suffered no prejudice and the acplaining previous cases decided under tion should not be deemed discon$ 1716 of Code of '51 differing slightly tinued: Smith 1. Shaw, 49–294. from this sect on): Nuison v. Blanfus, An appearance to move for a dis22-323; see, also, Webster v. Hunter, continuance for failure to file peti50–215; but where the petition was not tion by time fixed in notice, does not filed by the date fixed in the notice waive the right to such discontinuand it appeared that no prejudice re- ance: Cibula v. Pitts, etc., Mfg. Co., sulted to defendant by that fact, helil, 1 48–528. that a judgment by default was not. This section is not ar plicable to rendered void on account of such ir- actions in justices' courts. Even regularity: Brown v. Mallory, 26, when a petition must be filed in an 469. And where the date fixed for action in such court, it is sufficient to the filing of the petition was previous file it on the return day: Duty v. to that on which the notice was Dale, 42–215. served and the petition was filed at
SERVICE OF NOTICE.
SEC. 2601. The notice may be served by any person not a Who may Serve.
party to the action. R 2811.
If the notice is served by a consta- | where notice is served by a person ('. '31, 2 1718.
ble, the fees allowed him in such cases not an officer, his charres cannot be by $ 3805 may be taxed up as costs: so taxed: Conway v. McG. & M. R. DuBoise v. Babcock, 42-233; but | R. Co., 43–32.
Sec. 2002. The defendant shall be held to appear at the next Defendant to term afier service, provided :
ben when. 1. He be served within the county where suit is brought, in C. 51, 8 1720. such time as to leave at least ten days between the day of service
and the first day of the next term ;
2. He be served without the county, but within the judicial district, so as to leave at least fiiteen such days;
3. He be served elsewhere, so as to leave twenty such days for every one thousan i miles, or fraction thereof, extending between the places of trial and service, which distance shall be judicially noticed by the court. If not so served, he shall be held to appear at the second term after service.
In the computation of the periods | not affect the notice. Defendant will of time here mentioned, the day of be held to appear at the next term as servic- and the first day of the term so changed: Peoria M. & F. Ins. are both excluded. The last day of Co. v. Dickerson, 28-274, and 820 service for a term commencing on notes to $ 2599. Monday falls on Thursday, Sunday Personal service outside of the is not to be excluded in the computa- state upon a person not a resident or tion: Robinson r. Foster, 12-156. citizen of the state is only equivalent
A change of the time of holding to service by publication. See $ 2621 the next term of court made subse- and notes. quently to the service of notice will
Sec. 2003. The notice shall he served as follows :
Notice: how 1. By reading the notice to the Jefendant, or offering to read K. 2016. it in case he neglects or refuses to hear it read, and, in either case, C. 151, 1721, hy delivering him personally a copy of the notice, or if he refuses to receive it, offering to deliver it;
2. If not found within the county of his residence, by leaving a copy of the notice at his usual place of residence with some member of the family over fourteen years of age ;
3. By taking an acknowledgment of the service indorsed on the noti e, dated and signed by the defendant.
Of these methods of service, the plaintiff in the annount claimed, held, first and third constitute personal that he was not bound by the julgservice; the seconì, substituter ser- ment: Journey v. Dicker's!), 21-303. vice, while that by publication is con- ! Where service is authorized on an structire. If the defendant is mis- agent or officer o a corporation (or a nam d in a notice served by personal meinber or a rent of a partnership or actual service, it seems thiit he as under Rev. $ 28.6), personal service can on y take advantage thereof by is necessary and service by leaving appearing and pleading that fact in copy at the usual place of residence abatewent; and if he fail to do sci of such person, will not be sufficient: he cannot afterwards question the Brydolf r. Wolf, 332-309. regularity of the judgment. But Ä waiver of service indorsed on where the defendant was misnamed the notice is equivalent to an acin a notice served by leaving a copy, knowledgment of service: Johnson ec., and had no actual notice of the v. Monell, B-300, and sue notes to act on, and was not in debt to the next section.
Sec. 2004. If served personally, the return must state the Return wheu
personally time and manner and place of making the service, and that a copy served."
R 2817 was delivered to defendant, or offered to be delivered. If made a
C. '51, 8 1723 by leaving a copy with the family, it must state at whose house the same was left, and that it was the usual place of residerice 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, or a suflicient reason for omitting to do so, and that such person was over fourteen years of age, and was a member of the family.
The return should show a strict ( 55:3, and a return "served on John compliance with the law, as nothing Long on the 29th day of August, will be presumed in its favor when it 1857," held insuffic ent: Park v. appears that the requirements of the Long, 7-4 54. statute have not been observed: Diltz A return stating that service of nor. Chambers, 2 Gr., 479. Therefore, tice was made " by reading the same hrld, that a return was defective in the presence and hearing of dewhich did not state the time of service. fendant, hill, insufficient. Srvice and that the fact that part of the pa- should be by reading to defendant: per containing the return was t rn Hlynek 1. Englest, 11-210; but, held, off, or that the return was sworn to that such defect was cured by a recital more than the required length of in the return that defendant demandtime before the return day, would not ed and received a copy of the notice: cure the detect: Hakes v. Schupe, Anderson c. Kerr, 10–233; and a re27-46).
cital in the return in such a case that That the return does not state the a true copy was left with defendant, time of making service will not be a also, held, sufficient to cure the defital defect in a collateral attack: fect: Grosvenor ". Henry, 27-269. Wilson v. Call, 49–463.
A party may waive the reading of A return must show the manner of the notice to him, and such waiver service--the acts one-that the court i can be properly proved by recitals in may judge of their sufficiency. 'A r2- the return of the officer: Gregory v. turn, stating that the notice was duly Harmon, 10–445. serred, is not sufficient: Hodges i. ! A statement that a copy was reHodges, 6-78; Farris v. Pouel, 10-fused by defendant sufficiently indi
cates that one was offered: Farmers' | a particular case : Lore v. Cherry, Ins. Co. v. Highsmith. 44-330. 24-204.
It is essential to the sufficiency of Returns of service by leaving copy service by leaving copy, etc., that it with a member of the family, held, appear from the return that the de- insufficient in particular cases: Pil. fendant was not found: Daris v. key v. Gleason, 1-85; Converse 1. Burt, 7-56; Chi'tenden v. IIobbs, 9- Warren, 4-158; Tarenor v. Reed, 417; Nosler v. Githens, 9–295; Grant 10-416. v. Harlow, 11-429; Bonsall v. Isett, If the record shows that no juris14-309; but the return of the sheriff diction was acquired by the court, the need not state what diligence was judgment is void, and may be collat
ised to obtain service upon defendant erally attacked, but where ther: is in person. A return that he was not service, though defective, the judg. found is sufficient: Neally v. Redman, ment can only be attacked in a direct 5–387; Farris v. Ingraham, 34-2331; proceeding. The presumption is in and so is a return, “the defendant favor of the correctness of the pronot being found." It is not neces- ceedings of a court of goneral jurissary to state that defendant could not diction, and that a public officer be found: Wilson v. Call, 49-463. properly discharged his duty: Boker
A return that “defendant was not i. Chapline, 12–204. So held, where found” will be presumed to mean judgment was rendered upon subthat he was not found within the stituted service which was defective county of his residence, and the same in not showing that defendant was presumption arises in favor of a re- “not found :" Bonsail v. Isett, 14iurn made by a person other than the 309; and see Muscatine Turnrerein sheriff, when properly proven : Muck- | 0. Funck, 18-469; Pratt v. Western lot v. llart, 12-128.
Stage Co., 27-363; Gregg v. Thomp. It should appear from the return son, 17-107. that the person with whom the copy If it appear that there was notice. Wits left was a member of the family though defective, or the service thereof of the defendant. A statement that imperfect, and the court, as shown by she was the mother of defendant, the record, determines in favor of the hell, not sufficient: Lyon v. Thomp. sufficiency of such notice and service, son, 12-183.
even though such determination be A return stating that the notice was erroneous, it will have jurisdiciion, served on defendant Call by copy left, and its judgment cannot be held etc., " with Mrs. Call, she being a void in a collateral proceeding : member of the family," etc., held, suf- Shuwhan v. Lofer, 24–217; The ficient : Wils nu. Call, 4:9-16:3. Farmers' Ins. Co. 2. Highsmith, 44
A party may have more than one 330, and cases cited. And see also residence, though but one domicile. notes to $ 2599. Ques ion as to residence discussed in
Sec. 2605. If the notice is placed in the hands of a sheriff, he Sheriff to note must note thereon the date when received, and proceed to serve when received. the same without delay in his county, and must file the same with R.2 2819. C. 51, 1717. his return thereon in the office of the clerk, or return the same by
mail or otherwise to the party from whom he received it.
The failure of the sheriff to indorse by him, will not vitiate the service on the notice the time it was received thereof : Cobb v. Neucemb, 7-43.
Sec. 2006. If a notice be not duly filed or returned to the Penalty for de person from whom it was received by the sheriff, or if the return fective return thereon is defective, the officer making the sume may be fined by amendment of. R. 2820. the court not exceeding ten dollars, and shall also be liable to the
action of any person aggrieved thereby. But the court may permit an amendment according to the truth of the case.
Sec. 2007. Notice shall not be served on Sunday, unless the How served on plaintiff, his agent, or attorney, make oath thereon that personal Sunday, R. 2821.
service will not be possible unless then made; and a notice endorsed with such affidavit shall be served by the sheriff, or may be served by another as on a secular day.