This is a law action for damages arising out of a collision of automobiles. On December 7, 1960, the petition was filed in the office of the Clerk of the District Court in and for Dallas County, Iowa. It alleged that the collision occurred on December 13, 1958.
On December JO, 1960, each defendant was duly served with a purported original notice with a copy of the petition attached. December 21, 1960, defendant McDivitt filed a special appearance attacking the jurisdiction of the court, alleging the original notice was void and of no force and effect. On December 23, 1960, what was designated as “Amendment to Original Notice,” with a copy of the petition attached, was served upon defendants Terrill and Ure, and upon defendant McDivitt on December 24, 1960. December 29, 1960, Ure appeared specially to question the jurisdiction of the court. January 6, 1961, Mc-Divitt again appeared specially and on January 11, 1961, defendant Terrill filed a motion to dismiss under rule 104, B. C. P. The trial court sustained both special appearances on January 26, 1961, as to both the first original notice and amendment thereto, and on February 23, 1961, sustained the motion to dismiss and dismissed the petition at plaintiff’s cost. Plaintiff has appealed.
I. We will first examine plaintiff’s appeal as it concerns defendants Ure and McDivitt.
Buie 66, E. C. P., provides: “A defendant may appear *763specially, for the sole purpose of attacking the jurisdiction of the court * * *. The special appearance * * * shall state the grounds thereof. * *
Rule 104, R. C. P., requires every defense must be asserted in the responsive pleading except: “(a) Want of jurisdiction of the person, or insufficiency of the original notice, or its service must be raised by special appearance * * *.”
The special appearance of defendant McDivitt was filed December 21, 1960, as authorized by said rules and was based upon “insufficiency of the original notice”. So far as material here, the Original Notice was as follows:
“In the District Court * * * in and for Dallas County, Iowa.
“To above named defendants:
“You * * * are hereby notified that the petition is now on file in the office of the Clerk of the above named Court * * *.
“You * * * are notified to appear before said Court at the Polk County Courthouse in the City of Des Moines, Polk County, Iowa, * * * your default will be entered * * *.” (Italics added.)
This special appearance was not then submitted to the trial court.
On December 23 and 24, 1960, there was served upon the defendants what was called “Amendment to Original Notice”. This so-called amendment was a complete original notice, as provided for in rule 50, R. C. P. It stated “appear before said Court at the Dallas Coimty Courthouse in the Town of Adel, Dallas County, Iowa, within twenty days after service of this Amendment to Original Notice is served upon you * * *.” (Italics added.) It also advised defendants to ignore the previously served Original Notice wherein it calls for appearance at the Polk County Courthouse in Des Moines, Iowa.
Thereafter defendant McDivitt again filed a special appearance based upon the insufficiency of the original notice and no authority existing for the filing of an amendment thereto. Defendant Ure on January 17, 1961, amended his special appearance by stating that the amendment did not conform to rule 50, R. C. P., and conferred no jurisdiction.
An examination of the original notice served in the case *764of Summerlott v. Goodyear Tire & Rubber Co., 253 Iowa 121, 111 N.W.2d 251, reveals that it is almost identical to that now before us except as to the county wherein the petition was filed. We there held that the notice was fatally defective and affirmed the sustaining of the special appearance. That decision governs this case in so far as the original notice is concerned. The case of Jacobson v. Leap, 249 Iowa 1036, 88 N.W.2d 919, cited by appellant, is clearly distinguishable.
However, on December 23, 1960, the so-called “Amendment to Original Notice” was served upon both defendants Ure and McDivitt. While it fails to state that it is an “Original Notice”, probably as contemplated by rule’50, R. C. P., it does in all other respects conform to said rule and conferred upon the district court of Dallas County, Iowa, jurisdiction over the person of each defendant served therewith. Under the rule announced in Jacobson v. Leap, supra, and in no way inconsistent with the rule announced in Summerlott v. Goodyear Tire & Rubber Co., supra, the reference to the notice as an “Amendment to Original Notice” rather than an “Original Notice”, if it be a defect, is not a fatal one. See Pedersen v. Pedersen, 235 Iowa 708, 17 N.W.2d 520.
The sustaining by the trial court of the amendments to the special appearances of defendants Ure and McDivitt was error and requires a reversal as to them.
II. On January 11, 1961, defendant Terrill filed a motion to dismiss under rule 104, R. C. P. Rule 104 in part provides:
“Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto * * * except:
“(a) Want of jurisdiction of the person, or insufficiency of the original notice * * * must be raised by special appearance before any other appearance, motion or pleading is filed; * * *
“(b) Failure to state a claim on which any relief can be granted, may be raised by motion to dismiss such claim, filed before answer. * * *
“(d) Such motions must specify wherein the pleading they attack is claimed to be insufficient.”
The motion to dismiss, and it was so designated by defendant Terrill, states that a purported original notice was served December 10, 1960; that said notice was void, setting *765forth the reason for such statement; that on December 23, 1960, he was served with an “Amendment to Original Notice”; that by reason of the fact the first served notice was void, the amendment could not give it life and since the statute of limitations has run by reason of the fact that plaintiff was injured on December 13, 1958, and no good and sufficient notice was served until December 23, 1960, the statute of limitations has run and cause of action is barred by section 614.1(3), Code of Iowa.
We have held many times that a motion to dismiss must be based upon matters alleged in the petition. It may not sustain itself by its own allegations of fact, not appearing in the challenged pleading. Herbst v. Treinen, 249 Iowa 695, 88 N.W.2d 820; In re Estate of Ferris, 234 Iowa 960, 14 N.W.2d 889. The petition in the instant case, filed December 7, 1960, shows that the collision occurred December 13, 1958. There is nothing appearing in the petition as to any of the matters set forth and relied upon in said motion to establish the running of the statute of limitations. It is clearly a “speaking motion” and may not be deemed a motion to dismiss within the purview of rule 104(b), E. C. P. Such alleged matters not being considered, there is nothing in the petition to sustain the motion to dismiss. As such, it should have been overruled. See authorities last above cited.
Strictly speaking the so-called motion to dismiss in fact asserts a lack of jurisdiction so far as the original notice is concerned and in that respect might be deemed to be a special appearance; it also raises other issues not addressed solely to the jurisdiction of the court and thus constitutes a general appearance. 6 C. J. S., Appearances, sections 12f and 12(a); In re Estate of Ferris, supra; Gardner v. Beck, 195 Iowa 62, 72, 73, 189 N.W. 962. There being nothing upon the face of the petition to show the statute of limitations had run so to bar recovery, the trial court erred in sustaining said motion to dismiss.
For the reasons above set forth the ruling of the trial court sustaining the amendments to the special appearances of the defendants Ure and McDivitt, and the motion to dismiss as to defendant Terrill and dismissing plaintiff’s petition is reversed and remanded for further proceedings. — Eeversed and remanded.
*766Larson, Thompson, Peterson, and Thornton, JJ., concur.. Oliver, J., Garfield, C. J., and Snell, J., dissent. Bliss, J., not sitting.