I respectfully dissent. The majority *Page 1154 opinion lists the two kinds of appearances as (1) general appearance and (2) special appearance. I think this is erroneous. It is true the term "general appearance" is frequently used by courts and lawyers to indicate an appearance for all purposes. However, as far as I know the term "general appearance" has not been employed in the statutes of Iowa. The appearance statutes, Code sections 11087 and 11088, do not refer to an appearance for all purposes as a general appearance. Consequently, the word "appearance" without additional designation means a general appearance.
The section under consideration is 5038.14, Code of 1939, which recites in part: "The dismissal of an action after the nonresident has appeared under the substituted service herein authorized, shall bar the recommencement of the same action * * * unless".
The majority opinion says: "The section under consideration might well have contained the word `general' but it does not. Notwithstanding, we are asked to adopt a construction which compels us to put it in." With the foregoing statement I do not agree. The word "general" need not be inserted in the section because the word "appeared", as used in the section, means an appearance for all purposes. In fact the effect of the majority holding is to insert the word "specially", thus changing the meaning of the word "appeared".
That such interpretation is incorrect is evidenced by Code sections 12119 and 12572, which provide that the execution of a bond to discharge an attachment shall be deemed an appearance. Under the majority interpretation of the word "appearance" these statutes would mean that the execution of such bond shall be deemed a special appearance. I think the bench and bar have uniformly interpreted these sections to mean that the execution of a bond to discharge an attachment is an appearance for all purposes. Various other statutes employ the word "appear" or "appearance". Invariably this means an appearance for all purposes of the case. The expression "general appearance" seems to be unknown in our statutes. *Page 1155
The majority opinion points out that the special appearance was first recognized in a different form in the Revision of 1860 and continued in substantially the same form until 1911, when it took on its present qualities. The majority uses the expression "general appearance" throughout this discussion, although we do not find it in any of the statutes. However, it will be noted that in this same Revision of 1860, in sections 4129 and 4130, is first found the legislation which recites that the execution of a delivery bond shall be an appearance. Therefore, the holding of the majority would give rise to the inference that at the time these statutes were originally enacted the legislature had in mind that the execution of such bond was not an appearance for all purposes. I do not agree with this.
The majority opinion states: "We have consistently held to a strict construction of statutes where jurisdiction depended upon substituted service." I do not agree with this but construe the authorities to hold that the procedure is extraordinary in character and allowable only because specially authorized and, therefore, that such procedure must be closely followed.
The statute does not provide that the dismissal of the action after the nonresident has appeared shall bar its recommencement. What the statute says is "The dismissal of an action after the nonresident has appeared under the substituted service herein authorized, shall bar the recommencement of the same action * * *." (Italics supplied.) I think the words, "under the substituted service", were used advisedly. A special appearance is not an appearance under the substituted service. It is a denial that there is any valid substituted service. See 6 C.J.S. 6.
In discussing the possible effect of a literal construction of the statute the majority says: "Under it a nonresident could be harassed by as many notices and dismissals as the plaintiff might conceive necessary to wear down the nonresident to a point where he would rather pay than repeat appearances." It is sufficient answer to say that only one appearance under the substituted service is required. Having made one appearance *Page 1156 as distinguished from a special appearance the nonresident is not subject to further substituted service under the statute.
Nor do I agree that such construction "might well invite retaliatory legislation in other states". It is not unfair to require the nonresident to "appear" but once to a suit under the substituted service statute unless it be said the entire statute is unfair. Such statutes are in effect in many states and their legality has been generally approved by courts. Whether such statutes are beneficial or advisable is a legislative rather than a judicial question.
The expressed purpose of the statute is that certain nonresident defendants agree that they "shall be subject to the jurisdiction of the district court." Section 5038.01, Code of 1939. A special appearance is "for the sole purpose of attacking the jurisdiction of the court." By it the defendant does not fulfill "An agreement by him that he shall be subject to the jurisdiction" of the court. I think the decision in this case is contrary not only to the letter of the statute but also to its spirit.
HAMILTON and MITCHELL, JJ., join in this dissent.