Wolfs v. Challacombe ( 1974 )

UHLENHOPP, Justice

(dissenting).

A plaintiff files the original notice with the commissioner requiring the defendant to appear within 60 days after such filing. Code 1973, § 321.501. Section 321.501 provides that the plaintiff then mails

to the defendant, and to each of the defendants if more than one, within ten days after said filing with the commissioner, by restricted certified mail addressed to the defendant at his last known residence or place of abode, a notification of the said filing with the commissioner. (Italics added.)

The statute proceeds in § 321.504:

In lieu of mailing said notification to the defendant in a foreign state, plaintiff may cause said notification to be personally served in the foreign state on the defendant by any adult person not a party to the suit, by delivering said notification to the defendant or by offering to make such delivery in case defendant refuses to accept delivery.

These two sections, set forth in order as they are, convey the idea that the plaintiff has ten days to mail or to serve personally, whichever he chooses.

A different interpretation can lead to the result, as it did here, that the appearance date in the original notice filed with the commissioner is meaningless — and that paper constitutes the original notice. Since that original notice requires the defendant to appear within 60 days after its filing with the commissioner, if the plaintiff personally serves the notification within ten days, the defendant still has 50 days to appear. But if the plaintiff serves the notification 70 days after the original notice is filed with the commissioner, the defendant is already in default when the notification is served on him. The statute nowhere says the notification may set a new appearance date. That paper is merely a notification of the original notice filed with the commissioner, and that original notice sets the appearance date.

These extra-territorial notice statutes are strictly applied. Emery Transp. Co. v. Baker, 254 Iowa 744, 119 N.W.2d 272. I think they were not complied with here.