Fifth and Fourteenth Amendments to the Constitution of the United States; that defendant is not, and was not at the time of such attempted service, doing any business in the state of Iowa, nor was said Laughlin its agent, in such sense that service upon him would be service upon the defendant. "Fifth. That defendant was engaged in interstate commerce, and was not at any time engaged in transacting business in Iowa. "Wherefore, defendant moves the court to quash the return on said original notice, and to dismiss this action for want of jurisdiction." It is claimed by appellee that the present case is the outgrowth and aftermath of two suits brought in the courts of Cedar Rapids by J. W. Laughlin, one of the parties upon whom one of the original notices was served in this suit. It appears by defendant's affidavits that said Laughlin claimed, in the two suits just referred to, that there were certain commissions due him from the defendant, and assigned his claim therefor to one Newman. Newman brought suit, and service of notice was attempted to be made upon a clerk in the employ of defendant in their office in Chicago, but who was temporarily in Cedar Rapids for the purpose of getting a traveling bag, which was the personal property of one Lemon, and upon J. W. Laughlin, the assignor of the claim. A plea to the jurisdiction was filed in that case, but the case was finally settled by stipulation, showing that Laughlin had been paid more than the commissions due him. In the settlement, attorneys other than Rickel & Dennis represented Laughlin. The other of said two suits was brought in the name of Herron against defendant on the claim assigned to him by Laughlin for $2,000 alleged commissions. Laughlin, assuming to act as agent for the defendant, accepted service of the original notice. Defendant's affidavits show that said Laughlin never advised defendant company, nor any of its officers or agents, that he had accepted service of said notice. A plea to the jurisdiction was filed in said case, in which it was set up that Laughlin's agency, whatever it was, had terminated before the service on him or the acceptance of notice by him, and that such an acceptance was an attempt to perpetrate a fraud upon the court and the defendant. A petition for removal of said cause to the Federal court was filed, and plaintiff dismissed the case. Thereafter, the instant suit was commenced. It should have been stated that defendant announced that it appeared specially. 1. The first question raised by appellant is as to whether defendant had the right to plead and rely on Section 3541 of the Code, as amended by Chapter 162, Acts of the Thirty-Fourth General Assembly. Subdivision 4 of which provides: 1. APPEARANCE: procedure under special appear ance. "Any defendant may appear specially for the sole purpose of attacking the jurisdiction of the court. Such special appearance shall be announced at the time it is made and shall limit the party to jurisdictional matters only and shall give him no right to plead to the merits of the case." It will be noted that the statute quoted does not state how the question of jurisdiction may be raised. Appellant's contention is that, because Code Section 3561 provides that defendant may demur to the petition only where it appears on its face "that the court has no jurisdiction of the person of the defendant or the subject of the action," defendant should have raised the question by answer, under Section 3563 of the Code, which provides: "When any of the matters enumerated as grounds of demurrer do not appear on the face of the petition, the objection may be taken by answer." Appellant contends that this would present a question VOL. 185 IA.-5 of fact, for the determination of a jury; or that the question should be raised by answer and plea in abatement, under Section 3642 of the Code. It should be noted that the sections quoted refer to the petition. We do not understand that defendant was in any manner attacking the petition in this case by its special appearance. Appellant cites authority that, under the common law, defects in the service of process may be taken advantage of by a plea in abatement, rather than by motion to dismiss, if the defects in the service do not appear on the face of the proceeding. Another claim by appellant is that, because Section 1638 of the Code prohibits a foreign corporation which has not taken out a permit from exercising any rights or priv ileges conferred upon corporations until it has done so, it prohibits the defendant from raising the question of the special appearance as to the jurisdiction of the court over it. But we think this is unsound, and shall not further discuss that proposition. 2. APPEARANCE: who may make special appear ance. In this case, the paper filed by defendant was designat ed a plea to the jurisdiction, but the relief asked was by motion to quash the service. Without determining whether any other form of procedure would have been proper, we think this was so, for the purpose of determining the ju risdiction of the person. The statutes of Iowa specifically authorize the use of affidavits to sustain controverted ques tions of fact arising on motions. Code Section 3833. And Code Section 3831 defines a motion as a written applica. tion for an order, etc. It seems to have been the practice, in our courts and many others, to try such questions on motion, supported and resisted by affidavits. It is claimed by appellee that appellant waived any objection to the method of producing the evidence, by its filing affidavits in resistance, before plaintiff filed the motion to strike out the affidavits, and before raising the question as to the method of procedure. This may be so, but we do not determine. Wall v. Chesapeake & O. R. Co., 95 Fed. 398, and numerous cases therein referred to, are cited by appellee as being in point. That was a suit brought against defendant corporation, and the return of service made by the sheriff stated that the person served was the agent of the corporation, as in the instant case. The suit was removed to the Federal court, and a motion made to quash the service, supported by affidavits. The contention was that the motion to quash was improper, and that the defendant should have filed a plea in abatement, and had a trial of the question by jury; because such was the practice in the courts of Illinois. But the court said: "The rule prevailing in the Illinois state courts is contrary to the general rule on the subject in this country, as well as in England. There is no more reason for requiring a plea in abatement and a jury trial to test the question of a sufficient service of a summons than there would be to require the same proceeding, including a jury trial, in all cases where now a motion is held to be the proper remedy. The constitutional right to a jury trial obtains whenever there is any question at issue involving the life, liberty or property of the citizen. But a motion to quash a service of summons, or any other process or order, for insufficiency in the service, involves no such substantial right. Another service can be made, and the action proceed. No substantial right is affected by the decision. There are many matters pending in the progress of the case which are daily determined upon motion that are much more important in affecting substantial rights than a motion to set aside an irregular service of process. Take, for instance, the motion for a new trial upon newly discovered evidence after the plaintiff has recovered a substantial verdict." * + The court also quotes the English rule to try such questions on affidavit, and the reasons therefor, and says that convenience and justice demand that questions of this sort should not be the subject of a plea. The court cites a number of American cases in support of the position that the sheriff's return is not conclusive, and may be disputed by affidavits. This disposes of appellant's claim that it was entitled to a jury trial unless the answer of the defendant was a plea to the merits. 3. APPEARANCE: what constitutes ance. 2. It will be seen, from a reading of the pleading or motion filed by defendant, that, with other matter, there is the statement that it is not now and never has been transacting business in the state of Iowa. Plaintiff first moved to strike out that part of the general appear answer, because it was a plea to the merits, contrary to the special appearance statute; and later, upon the overruling of that motion, demanded a jury, because defendant had pleaded to the merits. Doubtless, if this sentence, appearing in the plea with other matter, should be considered as a plea to the merits, it would amount to a general appearance. We think the pleading ought not to be construed as a plea to the merits. There are several reasons for so holding: among them, that defendant announced, and its pleading shows on its face, that it was a special appearance; the trial court so construed it, and refused to pass upon the merits of the case. One place where the sentence referred to occurs, is where defendant is alleging that it is a Montana corporation, and not an Iowa corporation, for the purpose, doubtless, of showing that it was a foreign corporation. As before shown, service was had upon three parties, as the supposed agents of defendant; and we have no doubt that defendant's theory was that it was not transacting any business within the state, and therefore it could have no agents transacting its business within the state, upon whom service could be had. In fact, one of defendant's claims is, and numerous cases from other |