Ruth & Clark v. Emery

• Decision Date: 17 October 1944
• Docket Number: 46609.
• Court: Iowa Supreme Court
• Parties: RUTH & CLARK, Inc., v. EMERY et al.

15 N.W.2d 896

235 Iowa 131

RUTH & CLARK, Inc., v. EMERY et al.

No. 46609.

Supreme Court of Iowa

October 17, 1944

Emmert James, Needham & Lindgren and Lorna L. Williams, all of Des Moines, for plaintiff-appellant, Ruth & Clark Inc.

Frank W. Davis and Davis, McLaughlin & Hise, all of Des Moines for defendant-appellee, Robert J. Fitz.

HALE, Justice.

The question herein arises out of an appeal from an order staying proceedings in an equity case for foreclosure of mechanic's lien and other equitable relief.

On October 26, 1943, defendant Robert J. Fitz filed in the district court application for stay of proceedings under the provisions of the Soldiers' and Sailors' Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq. This application was resisted but on hearing the district court sustained the application and entered an order staying proceedings in the entire case. From the order of May 15, 1944 staying proceedings, plaintiff on June 2, 1944 served notice of appeal to this court.

The motion to dismiss the appeal is based on the ground that the order appealed from is an interlocutory order and is not appealable under the provisions of paragraph (b) of Rule 331, Iowa Rules of Civil Procedure, except as provided by paragraph (a) of Rule 332. Paragraph (b) of Rule 331 is as follows: 'No interlocutory ruling or decision may be appealed, except as provided in Rule 332, until after the final judgment or order. No error in such interlocutory ruling or decision is waived by pleading over, or proceeding to trial. On appeal from the final judgment, such ruling or decision may be assigned as error, where shown to have substantially affected the rights of the complaining party.'

Paragraph (a) of Rule 332 reads: 'Any party aggrieved by an interlocutory ruling or decision, including one appearing specially whose objections to jurisdiction have been overruled, may apply to the Supreme Court or any Justice thereof to grant an appeal in advance of final judgment. Such appeal may be granted, after notice and hearing as provided in Rules 347 and 353, on finding that such ruling or decision involves substantial rights and will materially affect the final decision, and that a determination of its correctness before trial on the merits will better serve the interests of justice.'

The motion further sets out that appellant has not complied with paragraph (a) of Rule 332, in that appellant failed to apply for an order to appeal in advance of final judgment and obtained no such order. The petition to dismiss appeal further states that defendant, Robert J. Fitz, is in the armed forces of the United States.

The first contention, that the order appealed from is interlocutory, we believe, is justified. A decree or order is interlocutory if it does not dispose of the cause or if an inquiry as to matter of law or fact is directed preparatory to a final decision. It is very plain that the order in this case does not dispose of the case.

As an interlocutory order it was appealable only on the conditions set out in paragraph (a) of Rule 332. These conditions were not complied with. So far as this appeal is concerned, no defendant has been brought into this court. We see no reason why any defendant in the original proceeding may not call this court's attention to the fact that the appellant has not the right to be heard on appeal from this interlocutory order, nor any reason why this court on its own motion may not hold that under the record the order is not appealable on account of failure to observe the necessary conditions set out in the rule. This rule is designed to prevent, so far as is possible, unnecessary litigation on appeal, by requiring all questions that can be so presented to be determined in one appeal. It has a useful purpose and should be observed. The exception to Rule 331(b) provided by Rule 332 secures to an appellant ample opportunity to have his rights on an interlocutory order preserved when it is found by this court or a justice thereof that a determination of the correctness of the order appealed from will better serve the interests of justice. There are other conditions in Rule 332(b) which may be...