(dissenting) — I respectfully dissent from Division IY of the majority opinion which holds the original notices served upon Illinois Motor Freight, Inc., and Harris Truck Line were not fatally defective.
I agree with the majority that we have adopted a rule of liberal construction in sustaining the jurisdiction of the court in such cases but I do not agree this is a departure from the rule of our earlier decisions. Neither of the two Iowa decisions cited by the majority supports that conclusion. One of them, Krueger v. Lynch, 242 Iowa 772, 48 N.W.2d 266, cites with apparent approval a number of earlier Iowa decisions. The Krueger case is readily distinguishable from the case at bar. The principal basis of that opinion is the provision of R. C. P. 53 that where an original notice is served at such time as the Krueger notice was served the defendant should have thirty days to appear. That provision of R. C. P. 53 was believed to be controlling and a printed note on the notice itself indicated as much.
The other Iowa case, Rhodes v. Oxley, 212 Iowa 1018, 1020, 235 N.W. 919, 920, is contrary to the majority opinion. It ordered the judgment set aside, stating one of the requisites of an original notice to be:
“(2) that the court in which the petition is or will be filed shall be named”
In that case the original notice stated that, on or before August 31, 1949, “ ‘there-filed in the office of the Clerk of the District Court of the State of Iowa, within and for the Story of Marshall, the petition of J. Y. Rhodes, etc.’ ”
The decision states, also:
“The petition was actually filed in the district court for Story County. There is no direct statement in the original notice so advising the defendant. * * * It [the notice] did notify the defendant to appear at Nevada, Iowa. This part of the notice carried an inference that the district court of Story County was the place of appearance. In such a ease the defendant might naturally guess, and perhaps fully believe, that it was the jurisdiction of that court that was being asserted apon him. The question is how far may [departure from] the specific requirements *1044of tbe statute be condoned and tbe burden put upon tbe defendant to exercise bis powers of deduction. Suppose for instance that tbis plaintiff bad made one further mistake, if sucb, and bad actually filed bis petition in tbe district court of Marshall County. Might not tbe plaintiff with equal plausibility contend that tbe notice contained sufficient reference to Marshall County to put tbe defendant upon bis inquiry and thereby to discover the filing place of tbe petition! In short tbe notice might be deemed sufficient to advise tbe defendant that tbe asserted jurisdiction was either in Story County or in Marshall County and yet fail to advise him with certainty which one. Notwithstanding our liberality of construction in support of tbe jurisdiction of tbe court, there must be a limit to tbe privilege of error. Tbe specific requisites of -the statute are not to be wholly ignored. Tbe statute provides for a certain degree of formality as requisite to confer jurisdiction.”
Tbe foregoing reasoning and language is applicable also to tbe notice given tbe two nonresident defendants in tbe case at bar. Here, asthere, tbe question is bow far may departure from tbe specific requirements of tbe statute (and E. C. P. 50) be condoned and tbe burden put upon a defendant to exercise its powers of deduction. Suppose, for instance, that tbis plaintiff bad made one further mistake, if sucb, and bad actually filed bis petition in the district court of Webster County. Might not tbe plaintiff with equal plausibility contend that tbe notice contained sufficient reference to Webster County to put defendants upon inquiry and thereby discover tbe filing place of bis petition! In short tbe notice might be deemed sufficient to advise defendants that tbe asserted jurisdiction was either in Webster County or Washington County and yet fail to advise them which one. Notwithstanding our liberality of construction in support of tbe jurisdiction of tbe court, there must be a limit to tbe privilege of error. Tbe specific requisites of tbe statute and rules are not to be wholly ignored.
In Eggleston v. Wattawa, 117 Iowa 676, 678, 91 N.W. 1044, tbe summons required defendant to answer a complaint which it stated would be filed in tbe office of tbe clerk of the district court of Brule County, South Dakota. Tbe statute required that tbe summons state where tbe complaint is or will be filed.
*1045“The summons in question did not state that essential fact, for no complaint was ever filed in the ‘district court.’ There was in fact no such court then in existence * * *. This change of courts is pleaded in the case by plaintiff as an excuse for the mistaken description, but the fact remains that defendant was not notified that the complaint would be filed in the circuit court, in which the judgment was rendered, but was advised that it would be filed in another court, which in fact did not exist. Under such circumstances we think defendant was justified in assuming that no valid judgment could be rendered against him. The circuit court acquired no jurisdiction, and the judgment on which this action is based was therefore void.”
The text in 72 C. J. S., Process, section 13, states: “The process should designate the court in which the action is brought and in which defendant should appear. * * * There should be due compliance with statutory provisions requiring the process to state the place of the filing of the petition or complaint * *
Applying the language of Eggleston v. Wattawa, supra, to the case at bar, the fact remains defendants were not notified that the petition would be filed in the district court of Washington County in which the judgment was rendered, but were advised it would be filed in another court. Under such circumstances a defendant would be justified in assuming that no valid judgment could be rendered against him.
The majority opinion states: “Had the instant notice, after stating that the petition was on file in Webster County, merely required appearance in said county, the situation would be somewhat similar to that found in Rhodes v. Oxley, supra, and we could readily go along with appellants’ contention that the notice was fatally defective.”
This statement overlooks the facts in the Rhodes case. That original notice did not require defendant to appear in the county where it stated the petition would be filed. It stated the petition would be filed in “the Story of Marshall”, which the decision assumes was Marshall County. It required defendant to appear at said court to be held in Nevada, Iowa, which was in Story County. The two cases may not be differentiated upon the basis stated in the majority opinion.
*1046At the end of Division IV the majority opinion states any other holding would circumvent a basic reason for our Rules of Civil Procedure, i.e., a speedy determination of litigation. This statement from section 684.18, Code of Iowa, 1954, omits the words, “upon its merits”, which follow the word litigation. This case has not been determined on its merits. All the nonresident defendants ask is that the default judgment be set aside so there may be a determination “upon its merits.”
Although not essential to this dissent it may be well to state I do not agree with the holding in Division V that the answer of defendant Leap did not state a meritorious defense. I think his general denial supported by the affidavit was sufficient in this ease.
The majority opinion cites no authority in support of its holding that the original notices in question were impervious to the direct attack made upon them. No such decision of this court has come to my attention. I would follow our decisions holding to the contrary.
Bliss and Garfield, JJ., join in this dissent.