Grosvenor v. Henry

27 Iowa 269

Opinion

Cole, J.

1. sekyioe and origmai notice, But two questions are presented by this record for our decision. First: Is a return on an original notice that it was “ personally served by reading in the hearing of the defendant and leaving a true copy with him” a sufficient service? Our statute requires that the service shall be made by reading the notice to the defendant and delivering him personally a copy, etc. Rev. § 2816. It was held, under the Code of 1851, which required the service to be made by reading the notice to the defendant and giving him a copy if demanded (§ 1721), that a return of service “ by reading the same in the presence and hearing of the defendant ” was defective, and a judgment rendered on such return of service was reversed. Hynek v. Englest, 11 Iowa, 210. So of a “ service on the within named defendants by reading in their hearing ” was held bad, and not sufficient to authorize a judgment. Farris v. Powell, 10 id. 553; see, also, Hodges v. Brett, 4 G. Greene, 345, and Hodges v. Hodges, 6 Iowa, 78, and cases cited.

But, it was also held, in Anderson v. Kerr, 10 Iowa, 233, that the defect of serving by reading in the presence and hearing of the defendant was cured or made good by a demand of a copy by such defendant, which was given him. The only difference between that case and the one now under consideration is, that the copy was demanded in that case, while in this it was given without demand; the law, in that particular, having been changed. ¥e cannot, without in effect overruling Anderson v. Kerr, hold the service insufficient in this cáse. And, whatever doubts some of the judges may entertain as to that case, they deem this a proper case for the application of the maxim stare decisis. Second, was the defendant entitled to thirty days’ notice to quit ? We think not.

2. laux>i,oii:d fOTciSe^entry and detainer. It is true our statute proAddes that any person in possession of real property with the assent of the owner is presumed to be a tenant at will unless the contrary is shown. Bev. § 2216. And it is a]g0 pr0Y^e(j fti&t thirty days’ notice in writing is necessary to be given by either to terminate a tenancy at will. Bev. § 2218. But the, same section provides that, when an express agreement is made, whether the same has been reduced to writing or not, the tenancy shall cease at the time agreed upon, without notice.

By tbe terms of tbe express agreement between plaintiff and defendant as shown by tbe petition, tbe defendant’s tenancy was to cease at tbe time be ceased to work for plaintiff. Whenever be ceased to work for plaintiff, he became a tenant or lessee bolding over after tbe termination of bis lease (and not a tenant at will), and as sncb was entitled to only three days’ notice to quit in order to enable plaintiff to bring bis action for forcible detainer. Bev. §§ 3952, 3955.

Affirmed.