Smith Bros. v. Shaw

Day, J. 1. practice: filing of petition before notice. Appellants insist -that as the notice which was personally served stated that a petition would be on file on or before the first day of August, and the petition was not filed until the second day of August, the cause must be regarded as discontinued under this notice, and that the only notice of the pendency of the action is the one served by publication. See Code, § 2600 ; Hudson v. Blanfus, 22 Iowa, 323. But in this case the notice was not served until the 10th day of August, 1872, eight days after the petition was filed. . No possible prejudice could have resulted to the defendants from the fact that the petition [296] was not filed at the time named in the notice. As this time had passed before the notice was served, the statement in the notice is equivalent to one that a petition is now, -at the time of serving the original notice, on file. This case is unlike Hudson v. Blanfus, 22 Iowa, 323, and the other cases in which it has been held that the action will be deemed discontinued if the petition be not filed by the time named in the notice. It is urged by appellant that the plaintiffs must have deemed the case discontinued, inasmuch as they proceeded to procure further notice by publication. It is to be observed, however, that the order for publication was procured before the return was made to the personal service. Plaintiffs may have taken steps to procure service by publication in ignorance of the fact that personal service had been obtained. The service, we think, was personal, and the defendants were not entitled to a re-trial as parties served by publication only. Affirmed. Seevers, J., having been of counsel, took no part in the decision of this case.