(dissenting) — I respectfully dissent. The law governing this case is section 321.512, Code, 1954, providing as follows:
“Any contract insuring the liability of a nonresident motorist in Iowa shall, in the event of the death of said nonresident, be considered an asset of his estate having a situs in Iowa in any civil action arising out of a motor vehicle accident in which said nonresident may be liable.”
The history of the above statute is of some interest. Every state in the United States has what is generally called a Nonresident Motorist Service Act. See Knoop v. Anderson, 71 F. Supp. 832. Iowa’s law appears in the Code under the heading “Actions Against Nonresidents” in sections 321.498 to 321.512, Code, 1954. Originally our statute, like all such statutes, provided the operation of a motor vehicle upon the highways of this state shall be deemed to constitute a designation of a certain *505public officer as service agent in actions growing out of such operation in this state. Tbe statute did not cover tbe case where the nonresident motorist died before suit could be brought. In 1941 the legislature amended section 321.499 of the Act to include within its provisions “the executor or administrator of the estate of the owner or operator of the motor vehicle.” Chapter 179, Acts 49th G. A. So the law as it appeared in the 1946 Code (section 321.499, paragraph 4) specifically included executors and administrators. In 1947 in the case of Knoop v. Anderson, 71 F. Supp. 832, Judge Graven of the Northern District of Iowa held the above provision in section 321.499, Code, 1946, providing for service on a foreign administrator invalid.* In 1951 the legislature again amended the Act by chapter 133, Laws of the 54th G. A. The first section of this last amendment struck out the provision in section 321.499 which Judge Graven had found invalid and the second section is the provision that a liability policy will be an asset, quoted at the beginning of this dissenting opinion, which the Code editor has placed at the end of the chapter and numbered section 321.512, Code, 1954.
I think it well to observe at the outset that we are dealing with suits against nonresidents and with our statutes governing such suits. The present law, section 321.512, supra, is a part of our Nonresident Motorist Service law. In Jermaine v. Graf, 225 Iowa 1063, 1066, 283 N.W. 428, 430, we pointed out that we had “repeatedly held * * * [this law] * * * presents a method of procedure that is extraordinary in character, and allowed only because specially authorized.” There too we stated: “We have held that, such statutes being the only authority for the extraordinary procedure, to justify the procedure the facts recited in the statute must appear [citations].”
The present statute, section 321.512, is narrowly drawn to reach the situation where the nonresident motorist perishes in the accident or before suit can be started, and where there is in existence a contract insuring his liability. It supplements the law covering the general situation governing suits against living nonresidents.
*506I. From the above it would seem that it was incumbent upon one who invokes the aid of the statute to have the jurisdictional fact of a liability contract, as we said in the Jermaine case, “appear.” It .certainly does not appear in the pleadings in the instant case. The attorney representing claimants, on whose application administration was granted, did not even bother to allege there was such a contract. He later testified that he heard there was such a contract, and the record shows this bit of hearsay reached him weeks before he filed the application for Dun-lop’s appointment. When the appointment was challenged by the Illinois administrator the Iowa administrator filed a resistance but nowhere in the resistance did he allege the existence of a liability contract. In this resistance he stated he was unaware of the appointment of the Illinois administrator at the time he, Dunlop, was appointed in Iowa. And he alleges generally that he was of the belief “and has information to the effect that the said Sam Fagin, at the time of his death, did have sufficient property in Johnson County, Iowa, to warrant his appointment
It did not appear from these pleadings that the Iowa appointment was based on section 321.512, supra, or on a liability contract. There is another instrument in the record called resistance of the claimants which does allege a liability policy but it is not clear that this was filed, and it fairly appears it was not considered by the trial court in his ruling.
From the above I feel it must be concluded the jurisdictional fact of the liability contract did not appear in the pleadings. It was not alleged or mentioned in any of the pleadings on which the parties went to trial. Let us see how this jurisdictional fact was made to appear in the evidence.
II. We first have the spectacle of counsel for the Iowa administrator trying to wring the jurisdictional fact from the understandably reluctant testimony of his adversary. Courts have long frowned upon counsel acting as advocate and witness in a trial. I think the act of placing opposing counsel on the witness stand should merit the same condemnation, especially when he is trying to prove a fact he did not allege and one that could easily be established by another witness, or a deposition, or pei'haps by interrogatory. It is conceivable the specific allegation *507of a liability contract might not have been denied, for the challenge to the Iowa appointment indicates the Illinois administrator was relying on the fact that he was appointed first.
The majority opinion does not rely upon the evidence of the attorney for the Illinois administrator. The most that it does is show that in the present proceeding he is representing the Illinois administrator but over the objection of hearsay and “immaterial to any issue in this case” he did say he had been employed by the Northwestern Casualty Company of Milwaukee, "Wisconsin, to handle claims which had been filed in the estate.
The testimony on which the majority relies is the testimony of the administrator’s counsel where he stated he had been told the adjustment company “represented the Northwestern National Casualty Company. of Milwaukee, Wisconsin, which company carried the automobile insurance on the Sam Fagin automobile.” This was received over the objection that it was “irrelevant, incompetent, and immaterial, and doesn’t prove or tend to prove any issue in this case.” It must be admitted it does not tend to prove any issue specifically pleaded. It was the purest hearsay but the objection was not on that ground, and the majority holds it was sufficient.
The general rule as stated in 32 C. J. S., Evidence, section 1034, is: “* * * it is commonly held that hearsay evidence, although admitted, has no probative value, is entitled to no weight, and cannot support a finding or judgment * * * although there is also authority for the view that hearsay evidence has probative force * *
I cannot find where we have ever departed from the “common” holding in the above rule. In Vacuum Oil Co. v. Carstens, 211 Iowa 1129, 231 N.W. 380, we held hearsay testimony of no probative value. The case of Reid v. Automatic Electric Washer Co., 189 Iowa 964,179 N.W. 323, cited in the majority opinion as indicating we have held hearsay evidence has probative force, merely holds that in arbitration proceedings under the Workmen’s Compensation law hearsay evidence admitted without objection must be considered. The opinion points out the Workmen’s Compensation Act provides “neither the commissioner nor the arbitration committee shall be bound by common-law or statutory rules of evidence * * See section 86.18, Code, 1954.
*508I would hold the evidence insufficient. This is not to say the evidence was so unreal as to compel disbelief. It is merely recognition of a statutory rule of evidence. One who is proceeding under the nonresident motorist service statute owes some duty to make the procedure appear from pleadings or at least evidence which is not of doubtful probative value. It does not appear from the pleadings and even the majority would concede the evidence is much less strong than the plaintiff could have produced. Under the whole record I would reverse and do as we did in Liberty v. Kinney, 242 Iowa 656, 47 N.W.2d 835, remand the case for further proof of the statutory requirement. In this connection I would like to point out the statute does not require a liability contract with a company authorized to do business in Iowa, so I see no necessity for Division IV of the majority opinion.
Bliss and Hays, JJ., join in this dissent.This court had no opportunity to pass on the validity of the statute. But see Leighton v. Roper, 300 N. Y. 434, 91 N.E.2d 876, 18 A. L. R.2d 537; Oviatt v. Garretson, 205 Ark. 792, 171 S.W.Sd 287; and Plopa v. Du Pre, 327 Mich. 660, 42 N.W.2d 777. where similar statutes were held valid.