Le Grand v. Fairall

Granger, J. 1. Original taw6servios: jurisdiction. I. The defendant urges that this court is without jurisdiction, because it does not appear that the plaintiff has no other plain, speedy and adequate remedy. There is also a that the service is sufficient to give jurisdiction. There is in fact no service, and that fact is indicated on the face of the return. The only ground on which to claim a service is that a copy of the notice was left with Louis Le Grand. The only provision for a service on the defendant by leaving a copy is: “If not found within the county of his residence,” the service may be “by leaving a copy of the notice at his usual place of residence ’ with some member of the family over fourteen years of age.” It does not appear from the return that Dora Le Grand was not found in the county, but, on the contrary, it 213 appears that she was in the county. The statute is the only authority for a substituted service, and the facts to justify it must appear. There are no facts stated from which the necessary facts -to give jurisdiction could be inferred. The district court was without jurisdiction. 2. Judgment without' TriSotrt^risdiction, relief. II. It is said that the plaintiff in this case had a plain, speedy, and adequate remedy besides this proceeding, because she “should have moved in the district court to set aside the ag ^ notice of the judgment in time to do so.” -The case of The Hawkeye Insurance Co. v. Duffie, 67 Iowa, 175, was a certiorari proceeding to set aside an order made after an appearance and judgment; and the court, in the absence of the defendant, entered an order, which was held to be without jurisdiction. After determining the question of the jurisdiction of the lower court to make the order, and holding that it was-void, this court said: “As the order was made in the absence of the defendant in the action, no exception could be taken, and, therefore, an appeal would have been ineffectual. It is true the defendant, when it obtained knowledge of the order, might have moved the court at the succeeding term to set it aside. But the defendant was not bound to do this, if the court did not have jurisdiction to make the order at the time it did so.” The court in that case sustained the certiorari proceeding, and set aside the order. It is conclusive of the point- in this case, and the prayer of the petition to set aside the judgment is granted. Writ sustained.