Winchester v. Cox

3 Greene 575

• Court: Supreme Court of Iowa
• Decided: November 15, 1852
• Status: Published

Opinion

Opinion by

Greene, J.

Cox and Shelley sued Winchester and Cole to secure the payment of a promissory note. It appears that notice of the suit was regularly served upon Winchester, by leaving a» certified copy at his dwelling, but the service upon Cole was “ by delivering a certified copy of the same at the store of L. D. Winchester & Co., with David Ayers, he being over fourteen years of age, and being clerk for said Winchester & Cole, informing him of the contents of the same.”

The Code, § 1721, provides that, “ the service is to be made by reading the notice to defendant, and giving him a copy, if demanded. If not found, he may be served by a copy left at his usual place of residence with some member of the family, more than fourteen years of age,” In this case the service was neither upon the defendant, nor yet at his usual place of residence. A store can hardly be regarded as the usual residence of a party, and if it is his usual residence, his only home, the officer’s return should state the fact. Judgment was rendered against Cole as well as Winchester, and he now seeks to reverse it, on the ground of defective service; and the judgment, as to Cole, would be reversed if the record in the case did not sufficiently show a general appearance of both parties by their attorneys. The transcript states that defendants, by counsel, came and filed a motion to dismiss the attachment. It also states that the “ cause came on to be heard, on motion filed by defendants to dismiss the attachment, and was argued by counsel,” &c. It states, too, that “the cause then came on to be heard on the merits, and was submitted to the court, and after examining all the evidence,” &c. These statements from the record sufficiently establish a general appearance. If it had been Cole’s intention to appear only to the attachment branch of the suit, and not to the case itself, he might have had such special appearance entered of record. JBut there is no such reservation in the entries. Counsel appear generally for both defendants. When the cause came on to be heard arguments were made to. the motion, and evidence submitted on the merits; and there is nothing to show that defendant’s attorney at any time withdrew from the cause.

O. Bates, for appellants. Casady <& TidrieTc, for appellees.

Where a party appears to a cause it is an appearance to the notice or summons, as well as to the writ of attachment. This point was settled in Graves v. Cole, 2 G. Greene, 467.

We conclude, then, that the court below did not err in rendering judgment againt Oole.

Judgment affirmed.