Docketed. C. 51, 1711. Costs of change. K. 2809. C. 51, 1712. Jury to be paid which change by county from is taken. 14 G. A. ch. 9, € 1. term is held. Same, 22. A garnishee is such a party as to proceed against him in the court be entitled to change of venue, and where commenced: Westphal v. where he does not join in an applica- Clark, 42-371. tion for the change, the cause wil SEC. 2595. Upon filing such transcript and papers in the office of the clerk of the court to which the same were certified, the cause shall be docketed without fee and proceeded in as though it had originated therein. SEC. 2596. Unless the change be granted under subdivision two, four, or five, of section two thousand five hundred and ninety of this chapter, all costs caused thereby or that are rendered useless 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 | not only with the costs of the transcript but also with the costs of the term: Allen v. Skiff, 2-433. The clerk's fee for entering order of change is part of the cost to be paid by the applicant: Stryker v. Rivers, 47-108. SEC. 2597. Where the place of trial in any civil action is changed to any county other than that in which the same was 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 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. CHAPTER 6. Notice. C. '51, 1714, 1715. OF THE MANNER OF COMMENCING ACTIONS. SECTION 2599. Actions in a court of record shall be commenced by serving the defendant with a notice signed by the R. 242811, 2812. plaintiff or his attorney, informing the defendant of the name of 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 noon 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. Notice of an action to foreclose a mortgage, without claiming any specific sum, held, sufficient to warrant a personal judgment for the amount due, as provided in § 3321: York v. Boardman, 40-57. In an action upon a note and mortgage, the note being given by one defendant, and the mortgage to secure it by another, held, that a notice directed to both of them stating that plaintiff claimed of them judgment on the note and foreclosure of the mortgage, etc., was sufficient: Hickman v. Chambers 10-301. The original notice should fix, by | 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; Lemonds v. French, 4 Gr. 123, and | Moody v. Taylor, 12–71. Butcher v. Brand, 6-235): Des Moines Branch, etc., v. Van, 12-523; Van Vark v. Van Dam, 14–232; and a notice requiring defendant to appear on or before noon of the second day of the next regular term, etc.," but not naming the term, is defective: Decatur Co. v. Clements, 18-536; but a notice requiring defendant to "appear and answer on or before noon of the 15th day, etc.," it appearing that the day named was the second day of the next term, was held sufficient, although the term was not named: Knapp v. Haight, 23-75; and where a notice required defendant to appear "on or before the 29th day, etc., being the second day of the next term," etc., whereas that day was, in fact, the fourth day of the term, held, that it was not error to refuse to set aside a defau.t rendered on the 29th, there being no showing that defendant had been misled: Burr v. Wilcox, 19-31; also, a notice giving the date of the commencement of the term, but not otherwise naming it, held sufficient: Farmers' Ins. Co. v. Highsmith, 44–330. Notice requiring defendant to appear on the second day of the April term, commencing April 12th," &c., when the term really commenced April 18th, held insufficient: Boales r. Shules, 29-507; a notice requiring an appearance at a date prior to the term is void and confers no jurisdiction: Haws v. Clark, 37–355. After proper service of notice is made, a subsequent change in the time of holding the term of court will not render the notice insufficient, and defendant must appear at the term as so changed: Peoria M. & F'. Ins. Co. v. Dickerson, 28–274. A notice which does not state when or where (i. e., in what court) defendant is required to appear, is fatally defective, and a judgment rendered thereon is void, and may be colla erally attacked: Kitsmiller v. Kitchen, 24-163; but it is not necessary that the name of the city or town in which the court is to be held should be stated: Bon v. Epley, 48-600. The notice is not to set forth the cause of action in detail, but the defendant should be informed with resonable certainty as to the nature of A not ce stating the claim as upon a promissory note, when it was in fact upon a guaranty of a non-negotiable instrument, held, sufficient: Peddicord v. Whittam, 9-471. In the original notice in an action for divorce, it is not necessary to state that alimony is claimed. It is allowed as an incident of the main action: McEwen v. McEwen, 26375; Darrow v. Darrow, 43-411. Where a notice was placed in the hands of the officer for service on the 1st day of a month, but not actually served until the 3d, and the debt came due on the 2nd, held, that the action was not actually commenced until the 3d and not until after the debt became due, § 2532 not being applicable in such a case: Parkyn v. Travis, 50-436. Though the notice be irregular and insufficient, yet, if the court takes jurisdiction to render judgment, the error can only be taken advantage of on appeal. The judgment is not thereby rendered void: Moody v. Taylor, 12-71; Woodbury v. McGuire, 42-339; De Tar v. Boone Co., 34-488, and cases therein cited, and see, also, notes to § 2604. Such defect cannot be taken advantage of on appeal, unless a motion to correct the irregularity has been made in the court below: See notes to § 3168. The original notice is not a process of the court and need not be in the style of "The State of Iowa" (Const. art. 5. § 8): Nichols v. Burlington, etc., Plank Road Co., 4 Gr. 42; Klingel v Palmer, 42–156. A process in the nature of a summons or subpoena in chancery, held, not sufficiently in compliance with the Discontinu ance. R. 2813. C. '51, 1716. 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 terin, the action will be deemed discontinued. An appearance to move for a discontinuance for failure to file petition by time fixed in notice, does not waive the right to such discontinuance: Cibula v. Pitts, etc., Mfg. Co., 48-528. 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 defendwill be deemed discontinued, (ex-ant suffered no prejudice and the acplaining previous cases decided under tion should not be deemed discon1716 of Code of '51 differing slightly tinued: Smith r. Shaw, 49–294. from this sect on): Hudson v. Blanfus, 22-323; see, also, Webster v. Hunter, 50-215; but where the petition was not filed by the date fixed in the notice and it appeared that no prejudice resulted to defendant by that fact, held, that a judgment by default was not This section is not a 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: Duffy v. to that on which the notice was Dale, 42–215. served and the petition was filed at Who may C. '51, 1718. Defendant to appear: when. R. 22815. C. '51, 1720. SERVICE OF NOTICE. SEC. 2601. The notice may be served by any person not a party to the action. If the notice is served by a consta- | where notice is served by a person ble, the fees allowed him in such cases not an officer, his charges cannot be by $3805 may be taxed up as costs: so taxed: Conway v. McG. & M. R. Du Boise v. Babcock, 42-233; but R. Co., 43–52. SEC. 2602. The defendant shall be held to appear at the next term after service, provided: 1. He be served within the county where suit is brought, in 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 fifteen 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. be held to appear at the next term as so changed: Peoria M. & F. Ins. Co. v. Dickerson, 28-274, and see notes to § 2599. In the computation of the periods | not affect the notice. Defendant will of time here mentioned, the day of service and the first day of the term are both excluded. The last day of service for a term commencing on Monday falls on Thursday. Sunday is not to be excluded in the computation: Robinson v. Foster, 12-186. A change of the time of holding the next term of court made subsequently to the service of notice will Personal service outside of the state upon a person not a resident or citizen of the state is only equivalent to service by publication. See § 2621 and notes. SEC. 2603. The notice shall be served as follows: Notice: how served. 51. 1721. 1. By reading the notice to the defendant, or offering to read R. 2816. it in case he neglects or refuses to hear it read, and, in either case, C. 31, 1752. by 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 the notice, dated and signed by the defendant. Of these methods of service, the first and third constitute personal service; the second, substituted service, while that by publication is constructive. If the defendant is misnam d in a notice served by personal or actual service, it seems that he can on y take advantage thereof by appearing and pleading that fact in abatement; and if he fail to do sc he cannot afterwards question the regularity of the judgment. But where the defendant was misnamed in a notice served by leaving a copy, etc., and had no actual notice of the act on, and was not in debt to the indorsed on plaintiff in the amount claimed, held, Where service is authorized on an A waiver of service indorsed on the notice is equivalent to an acknowledgment of service: Johnson v. Monell, 13-300, and see notes to next section. personally C. '51, 1723. SEC. 2604. If served personally, the return must state the Return wheu time and manner and place of making the service, and that a copy served. was delivered to defendant, or offered to be delivered. If made R817 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 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, or a sufficient 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 compliance with the law, as nothing will be presumed in its favor when it appears that the requirements of the statute have not been observed: Diltz r. Chambers, 2 Gr., 479. Therefore, held, that a return was defective which did not state the time of service, and that the fact that part of the paper containing the return was trn off, or that the return was sworn to more than the required length of time before the return day, would not cure the defect: Hakes v. Schupe, 27-465. That the return does not state the time of making service will not be a fotal defect in a collateral attack: Wilson v. Call, 49-463. 553, and a return "served on John A return stating that service of no- A party may waive the reading of the notice to him, and such waiver can be properly proved by recitals in the return of the officer: Gregory v. Harmon, 10-445. A return must show the manner of service-the acts done-that the court may judge of their sufficiency. A return, stating that the notice was duly serred, is not sufficient: Hodges v. A statement that a copy was reHodges, 6-78; Farris v. Powel, 10-fused by defendant sufficiently indi cates that one was offered: Farmers' It is essential to the sufficiency of a particular case: Love v. Cherry, 24-204. Returns of service by leaving copy with a member of the family, held, insufficient in particular cases: Pilkey v. Gleason, 1-85; Converse v. Warren, 4-158; Tarenor v. Reed, 10-416. If the record shows that no jurisdiction was acquired by the court, the judgment is void, and may be collaterally attacked, but where there is service, though defective, the judg ment can only be attacked in a direct proceeding. The presumption is in favor of the correctness of the proceedings of a court of general jurisdiction, and that a public officer properly discharged his duty: Boker v. Chapline, 12–204. So held, where judgment was rendered upon substituted service which was defective in not showing that defendant was "not found :" Bonsall v. Isett, 14309; and see Muscatine Turnverein Funck, 18-469; Pratt v. Western Stage Co., 27-363; Gregg v. Thomp son, 17–107. A return that defendant was not found" will be presumed to mean that he was not found within the county of his residence, and the same presumption arises in favor of a return made by a person other than the sheriff, when properly proven: Muck-v. lot v. Hart, 12-428. It should appear from the return that the person with whom the copy If it appear that there was notice. was 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 held, not sufficient: Lyon v. Thomp-sufficiency of such notice and service, son, 12-183. A return stating that the notice was served on defendant Call by copy left, etc., with Mrs. Call, she being a member of the family," etc.,held, sufficient: Wils nr. Call, 49-463. A party may have more than one residence, though but one domicile. Question as to residence discussed in even though such determination be erroneous, it will have jurisdiction, and its judgment cannot be held void in a collateral proceeding : Shawhan v. Loffer, 24-217; Farmers' Ins. Co. v. Highsmith, 44330, and cases cited. And see also notes to § 2599. The 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 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. R. 22819. Penalty for defective return amendment of. R. 2820. Sunday. 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. Newcomb, 7-43. SEC. 2606. If a notice be not duly filed or returned to the person from whom it was received by the sheriff, or if the return thereon is defective, the officer making the same may be fined by 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 amendinent according to the truth of the case. SEC. 2607. Notice shall not be served on Sunday, unless the How served on plaintiff, his agent, or attorney, make oath thereon that personal 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. |