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Simon v. Estate of Iverson

Court of Appeals of Iowa

March 22, 2017

ELIZABETH SIMON n/k/a ELIZABETH HARTSON, Plaintiff-Appellant,
v.
ESTATE OF LYLE IVERSON, Defendant-Appellee.

         Appeal from the Iowa District Court for Clayton County, John J. Bauercamper, Judge.

         Elizabeth Hartson appeals the district court's dismissal order. AFFIRMED.

          Rod H. Powell of Powell Law Firm, P.C., Clive, for appellant.

          Jon A. Vasey of Elverson, Vasey & Abbott, LLP, Des Moines, for appellee.

          Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.

          VAITHESWARAN, Judge.

         Elizabeth Hartson sued the estate of an Illinois resident, Lyle Iverson, for injuries she sustained in an automobile accident that resulted in the death of Iverson. She failed to serve the estate within ninety days of filing the petition, as required by Iowa Rule of Civil Procedure 1.302(5), but obtained an extension of time to complete service.

         Hartson filed a proof of service within the extension period, attesting the original notice and petition were served upon "Terry T. Stratton, attorney for the Executor of the Estate of Lyle Iverson" and upon the Iowa Department of Transportation pursuant to our long-arm statute. See Iowa Code § 321.500 (2015). Although Hartson's petition was filed in the Iowa District Court for Clayton County, the original notices served on the executor's attorney and the IDOT stated the defendant would have to serve a motion or answer "in the Iowa District Court for Polk County, Iowa, at the Courthouse in Des Moines, Iowa."

         The estate filed a motion to dismiss, asserting Hartson "failed to effectuate timely and proper service on Defendant." Following a hearing, the district court granted the motion, finding several problems with service. Hartson appealed.

         Hartson challenges the dismissal order on a number of fronts. We find it necessary to address only one of them: the error in the original notice.

         The district court concluded,

[A]n original notice which directs appearance/filing of an answer in the wrong county or city is defective. See Summerlott v. Goodyear Tire & Rubber Co., 111 N.W.2d 251 (Iowa 1962). Clearly the original notice used here incorrectly directs an answer to be made in Polk County rather than Clayton County.

         We discern no error in this ruling.

          Iowa Rule of Civil Procedure 1.302(3) requires the service of an original notice with a copy of the petition. See also Iowa Code § 321.501 (requiring service of original notice). Hartson served original notices that instructed the defendant to file a motion or answer in the wrong county. This defect was fatal. See Summerlott, 111 N.W.2d at 253 (concluding original notice informing defendant to file ...


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