Bonsall v. Isett , 14 Iowa 309 ( 1862 )

Lowe, J.

In considering this case it is no unimportant circumstance to know, that all the material allegations of the bill that were contested touching the fraudulent alteration of the mortgage after its execution as stated, whereby the plaintiff’s homestead was charged to have been wrongfully inserted, were presented in the form of issues out' of ehaneery to the arbitrament of a jury, who failed, after hearing all the evidence, to find any of them in favor of the petitioners, but on the other hand did find that no fraud was practised upon Leah Bonsall, by any one, in procuring the execution of the mortgage of the homestead. This finding and its ratification by the court below is accepted by us as a proper determination of the disputed questions of fact, and which a careful analysis of the testimony will sustain. The question, however, which seems to have attracted the largest share of the attention of counsel for the appellants is a legal one, going to the jurisdiction of the Court over the person of Bonsall, at the time the judgment of foreclosure was rendered. The return of the officer reads as follows: “ This notice came to hand January 21, 1858. I served the same upon Geo. W. Bonsall, by leaving a copy thereof at his usual place of residence with Leah Bonsall, a member of his family over the age of fourteen years.” We have several times held in a direct proceeding between the parties on an appeal that such a service was defective in failing to state in the return that the party intended to be served in that method was “ not found.” With these words in the return in this case the service would have been complete. Without them it was technically. incomplete. The question of its sufficiency was directly passed upon by the Court. The language of its judgment is, * * * u and it appearing that the defendants had each hem duly served with notice of the pendency of this suit, and being each three times solemnly called, come not but malee default,” &c. It was the province of the Court thus determine its own jurisdiction over the person of the defendants. If in doing so it errs, the method of - correcting the error is by an appeal; it cannot be passed upon and determined in a collateral proceeding.

There is a clear distinction between a service insufficient only in the manner of making it, and the case where no service at all is made or attempted to be made. In the latter case there is no question of jurisdiction to decide and if a judgment is rendered under such circumstances against a party, it would be a nullity. In the former case there is a question of jurisdiction raised which the court ex necessitate must decide; if it does so erroneously, against the defendant, and renders a judgment for the plaintiff, such judgment would be voidable, nevertheless just as binding upon the parties as any other judgment or decree until reversed and corrected on appeal. In the case of Cooper v. Sunderland, 3 Iowa, 114, it was said by this Court, “if there be a notice or publication, or whatever else of this nature the law requires in reference to persons, its sufficiency cannot be questioned collaterally.” Again, in the case of Morrow v. Weed, 4 Iowa, 77, where the sufficiency of a notice was objected to and where the Probate Court had passed upon the question, it was held that if the decision was erroneous, an appeal was the proper mode for correcting, and that the error could not be tried in a collateral proceeding. Bromley v. Smith, 2 Hill, 517, is a case quite in point, where the justice’s docket merely stated the return as “ personally served.” The statute required the return to state the time and manner of service, and service to be made by reading the summons to the defendant and delivering him a copy if demanded. Held, that the error, though fatal on certiorari, was not a defect jurisdictional in its nature and could not avail collaterally. We have held the same general doctrine in the case of Boker et al. v. Chapline et al., 12 Iowa, 204. Counsel for appellants admit that the law upon this subject as settled in this State is against him, but insists that the weight of authority in other Courts and States is the other way, and refers to several decisions of the Supreme Court of the United States, • and especially to the case of Harris v. Hardman, 14 How., 334, and in view of this fact urges a reconsideration of the question. We admit the conflict of authority, but prefer to reserve a more careful reexamination of our adjudications upon the subject till an appellant can come before us under less questionable circumstances. In this case we are asked to set aside the foreclosure proceedings as void, because the officer in his return of the service of notice, by copy, at the defendant’s residence, omitted to state that he was “ not foundnot that he was in the county in fact and could have been personally served, for in his petition the complainant alleges that at the time of said service he was absent in a distant territory and out of the reach of the officer. He also testified to the same fact at the hearing of the cause, thereby admitting and proving the existence of the very fact himself which authorized the service of notice by copy as stated, and which when done makes the service as eifectual and binding upon him as though it had been personal. To grant relief under sucK circumstances would be asking much of the Court, and we are not now just prepared to perpetrate so obvious an incongruity at the expense of common sense. Finding no sufficient reason for disturbing the decision below, the same will be accordingly

Affirmed.