The question presented is: Should plaintiff’s petition have been dismissed under R.C.P. 55 when the original notice states the petition is now on file and it was not filed until Monday following the service of notice on the preceding Saturday?
On Friday, July 29,1966, plaintiff’s counsel in Boone mailed a petition seeking damages for personal injury to the Clerk of *277the District Court in Boone. At the same time the original notice was mailed to the Guthrie County Sheriff in Guthrie Center for service on defendant. The notice recited that the petition “is now on file” and was served on defendant Saturday, July 30, 1966. The petition was filed Monday, August 1, 1966.
On August 15 defendant filed a special appearance challenging the jurisdiction of the court. It was amended August 22 to include a claim he was entitled to dismissal under R.C.P. 55 which provides:
“If the petition is not filed as stated in the original notice served, any defendant may have the case dismissed as to him, without notice, at plaintiff’s cost; and may docket it for this purpose by filing his copy of the original notice, if need be.”
After hearing in which it was agreed the Office of the Clerk of the District Court was open on Saturday, July 30,1966, the trial court sustained the special appearance. Plaintiff has appealed. We affirm.
I. Plaintiff claims the petition was timely filed under a liberal construction of R.C.P. 55 in view of section 4.1, paragraph 23, 1966 Code of Iowa, which, in its pertinent parts, provides:
“* * * whenever by the provisions of any statute or rule * * * the last day for the commencement of any action or proceedings, the filing of any pleading or motion in a pending action * * * falls on a Saturday * * * the time therefor shall be extended to include the next day which is not a Saturday, Sunday * * * [or holiday] * *
We cannot agree section 4.1, paragraph 23, applies to R.C.P. 55. The rule does not set any date or time by which a petition must be filed. Plaintiff set his own time in the original notice. Such time is not prescribed by any statute or rule applicable here. Plaintiff could have stated in the notice the petition “will be on file August 1, 1966”. He chose the words “is now on file”. The petition was not filed “as stated in the original notice” and under the express provisions of R.C.P. 55, defendant “may have the case dismissed”.
*278II. Failure to comply with. R.C.P. 55 in no way prejudiced defendant.' Plaintiff claims a showing of prejudice is required. While'the result seems harsh, we have consistently held R.C.P. 55 and prior statutes mandatory. Credit Industrial Corporation v. Miller, 255 Iowa 1022, 125 N.W.2d 142; Read v. Rousch, 189 Iowa 695, 703, 179 N.W. 84 (petition one day late).
In Conley v. Dugan, 105 Iowa 205, 208, 74 N.W. 774, we said: “Plaintiff then waited until so late a date that any slight interruption of the mail service would prevent him from complying with the terms of the notice, and sent the paper by mail to the clerk. Such interruption occurred, and the petition was not filed until after the date fixed in the notice. This default entitled defendant to have the action dismissed.”
In Sioux County v. Kosters, 194 Iowa 1300, 1303, 191 N.W. 315, a default judgment, entered when defendant failed to appear, was set aside because petition was filed seven days late. We said:
“The function of an original notice is to bring the defendant into court to answer to a petition duly filed and in this particular the language of Section 3515 [now R.C.P. 55] is imperative and mandatory. Edwards Loan Co. v. Skinner, 127 Iowa 112; Rotch v. Humboldt College, 89 Iowa 480. If the defendant desires to waive a failure of compliance on the part of plaintiff, it is his privilege to do so; but unless he voluntarily appears and waives defects it is his right to insist upon the observance of the statute. State v. Knapp, 178 Iowa 25. A special appearance is not a waiver. Moffitt v. Chicago Chronicle Co., 107 Iowa 407; Read v. Rousch, 189 Iowa 695.
“A defendant has the right to rely upon the terms of the notice which is served upon him, and if upon the date desig-' hated in the notice no petition is on file, he is not in default forsooth he did not make inquiry in the office of the clerk thereafter. The defendant has the right to demand a dismissal of the action upon the' failure of plaintiff to file the petition ■ within the time named in the notice. First Nat. Bank v. Stone, 122 Iowa 558; Conley v. Dugan, 105 Iowa 205. In the event that a judgment by default is entered under such, circumstances it is the right of the defendant to directly attack the judgment *279•as a voidable .judgment, and it is the duty of the court to order it set aside and vacated.”
III. Plaintiff claims failure to file the petition as stated in the original notice is not a jurisdictional defect and defendant by raising the issue in an amendment to his special appearance waived his rights under R.C.P. 55. He also claims defendant elected to raise only jurisdictional matters when the special appearance was filed and he should be bound by that election.
The contention failure to file a petition at or before the time stated in the notice is not a jurisdictional defect is correct under Credit Industrial Corp. v. Miller, 255 Iowa 1022, 1027, 125 N.W.2d 142. It is also true: “Under our statute, a defendant may make a special appearance to an action against him, for the sole purpose of attacking the jurisdiction of the court.” Read v. Rousch, 189 Iowa 695, 699, 179 N.W. 84.
Defendant’s original special appearance challenged the jurisdiction only. His amendment set forth the facts surrounding the filing of the petition and stated “jurisdiction of this defendant was not obtained; and moreover, defendant is entitled to the dismissal of this cause under R.C.P. 55.
“Wherefore, defendant prays as in his original Special Appearance; and further that the court dismiss this cause pursuant to R.C.P. 55.”
Therefore, the “special appearance” as amended raised matters which did not go to the jurisdiction of the court. This does not mean, however, that the inclusion of nonjurisdietional matter in the “special appearance” brings the result suggested by plaintiff. They are not to be disregarded or waived. If a paper designated a “special appearance” “pleads matter which, in fairness, must be deemed purely defensive, or as calling for the exercise of the court’s judicial authority to pass upon any question except its own jurisdiction, then the fact that the paper is entitled a ‘Special Appearance’, instead of an answer or other pleading, is immaterial, and ordinarily the appearance will be treated as general.” Read v. Rousch, supra, loc. cit. 699. Raley v. Terrill, 253 Iowa 761, 765, 113 N.W.2d 734; In re Estate of Ferris, 234 Iowa 960, 971, 14 N.W.2d 889.
*280The holding in Credit Industrial Corporation v. Miller, supra, that a dismissal under R.C.P. 55 is on the merits rather than jurisdictional is material here only as it makes the special appearance in fact a general appearance. Here the statute of limitations had run and defendant did not rely on res judicata as a defense to a second action, but asked for dismissal under the rule.
Rule 55 was before the court and the sustaining of the special appearance had the same effect as an order sustaining a motion to dismiss.
IV. Plaintiff urges us to apply the rule of liberal construction we have adopted relating to deficiencies in an original notice to the requirements of R.C.P. 55 “to avoid defeating action because of technical and formal defects which could not reasonably have misled defendant.” Jacobson v. Leap, 249 Iowa 1036, 1040, 88 N.W.2d 919; Krueger v. Lynch, 242 Iowa 772, 779, 48 N.W.2d 266; First National Bank v. Stone, 122 Iowa 558, 560, 98 N.W. 362.
We have examined R.C.P. 55 with a sympathetic eye because the result seems harsh. .However, the rule is so clear we can find no reasonable grounds upon which we can depart from the construction given it in the cases cited above holding it to •he mandatory. - ..
For the reasons stated, we hold the trial court was correct in its ruling. — Affirmed-.
All Justices concur except Larson and Becker, JJ., who dissent.