Anderson v. National By-Products, Inc., BY-PRODUCT

• Citation: 257 Iowa 921,135 N.W.2d 602
• Decision Date: 08 June 1965
• Docket Number: INC,No. 51640,BY-PRODUCT,51640
• Parties: Gerald O. ANDERSON, United States Fidelity & Guaranty Company, Appellees, v. NATIONAL, Appellant.
• Court: United States State Supreme Court of Iowa

Page 602

135 N.W.2d 602

257 Iowa 921

Gerald O. ANDERSON, United States Fidelity & Guaranty Company, Appellees, v. NATIONAL BY-PRODUCTS, INC., Appellant.

No. 51640.

Supreme Court of Iowa.

June 8, 1965.

Jones, Cambridge, Carl & Howard, Atlantic, for appellant.

White, White & McMartin, Harlan, for appellees.

PETERSON, Justice.

This is an appeal by defendant granted by us pursuant to rule 332, R.C.P., 58 I.C.A., from interlocutory order refusing to dismiss plaintiffs' petition under R.C.P. 215.1, and to strike, because of delay in filing, an amended petition. We affirm the order appealed from.

I. Plaintiffs' action was commenced April 7, 1963. The case not having been tried, the clerk of the district court gave notice to counsel of record that it would be for trial and subject to dismissal if not tried in the next succeeding term pursuant to rule 215.1, R.C.P. The rule provides: 'All ruch cases shall be assigned and tried or dismissed without prejudice at plaintiff's costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and net ex parte.' The dismissal term commenced September 14, 1964.

Plaintiffs filed their motion for continuance during the September term and asked the court to fix a time and place for hearing on the motion and provide the manner of notifying defendant's attorneys, who live in another county, of such hearing. By order signed October 22, filed October 23, during the September term, the court set the motion for hearing on October 27 and provided at least two days notice by mail to defendant's attorneys of such hearing. October 27 was the second day of the October term. On that date the court heard the motion and ruled plaintiffs had shown good cause for continuance of the case over the September term even though the motion for continuance was not heard until the second day of the October term. The court refused to dismiss the case under rule 215.1.

Defendant's appeal thus presents the question whether a motion for continuance filed during the dismissal term which the trial court at that term sets for hearing on the second day of the succeeding term may be sustained at such succeeding term, or is the court compelled to dismiss the case under rule 215.1 because of a failure to grant the continuance during the dismissal term.

This question has not heretofore been presented to nor decided by us. We are of the opinion the court was not compelled to enter its order for continuance at the dismissal term and that since the motion for continuance was filed, ordered set for hearing and notice of the hearing given, all during the dismissal term, the court retained jurisdiction to hear and rule on the motion for continuance on the second day of the succeeding term.

It may be physically impossible for a busy trial judge to hear and finally dispose of all pending matters before the close of a term. It would seem he should, and we think he does, have inherent power to defer hearing and finally disposing of some matters at least until the second day of the immediately succeeding term. We are not disposed to hold under the circumstances shown here that the power of the court to continue the case and to decline to dismiss it under rule 215.1 must be exercised at the dismissal term. We don't think the language of the rule or any previous decision of ours compels such a holding.

The district court schedules for 1964, compiled by the state, of state and published by the state, of which we take judicial notice, show that both the September and October terms, 1964, in Shelby County, ran concurrently with the September and October terms in another county in the district. Under this schedule the same judge presided over the court in both counties during the same period. This may well account for the court's inability to hear the motion for continuance and rule upon it during the dismissal term. In any event, presumably there was good cause for the court's inability to hear and rule upon plaintiffs' motion for continuance at the September term.

The effect of defendant's argument is that the trial court had no discretion on October 27 to find good cause for continuance over the September term had been shown, and that the mere delay of a few days in hearing and ruling on the motion compelled the court to dismiss the case. It is our view the court still had discretion to decide the question of good cause for such continuance on October 27.

II. The second part of the order from which this appeal was taken is the overruling of defendant's motion to dismiss plaintiffs' amended petition because of delay in filing it.

On December 4, 1963, the trial court ordered plaintiffs to recast their petition for the protection of the rights of plaintiff United States Fidelity and Guaranty Co. Plaintiffs' amended petition was not filed until October 17, 1964. In the meantime on June 22, 1964, defendant moved to dismiss the action because of delay in filing the recast petition, because it was not filed within seven days. We are told such filing was required by rule 86, R.C.P. After the amended petition was filed defendant moved to strike it upon the same ground.

In their resistance to defendant's motion to dismiss plaintiffs asserted that after the motion was filed their counsel requested and were granted additional time by defendant's counsel to file the amended petition and tentative discussion was had as to possible settlement. We do not understand these assertions were denied.

Rule 86 states, 'If a party is required or permitted to plead further by an order or ruling,' unless otherwise provided thereby, the pleading shall be filed within seven days after notice of the order or ruling is mailed or delivered 'and if such party fails to do so within such time, he thereby elects to stand on the record theretofore made. On such election, the ruling shall be deemed a final adjudication in the trial court without further judgment or order; reserving only such issues, if any, which remain undisposed of by such ruling and election.'

We are not persuaded rule 86 required a dismissal of this action or the striking of the amended petition because of the delay in filing it. Defendant's motion to require plaintiffs to recast their petition was based on the fact the original petition contained two divisions, only one of which was maintainable. One division of the original petition asked for judgment in favor of plaintiff Anderson because of personal injuries, and the other division for judgment in favor of plaintiff company, workmen's compensation insurer of Anderson's employer, which had paid medical and hospital bills and compensation by reason of the employee's injuries. The amended petition combined in a single count the claims made in both divisions of the original petition. The ruling on the above motion was apparently deemed necessary by our decision in Price v. King, 255 Iowa 314, 122 N.W.2d 318.

"* * * Rule 86 was designed primarily to render unnecessary the formal entry of final judgment against a party who obviously has decided to stand on his pleadings following a ruling on a motion to dismiss which is adverse to him. Such a party in effect suffers a final adjudication against him. The rule was applied under these circumstances in' (citations). Forte v. Schlick, supra, 248 Iowa 1327, 1330, 85 N.W.2d 549, 551.' Winneshiek Mutual Insurance Assn. v. Roach, 256 Iowa ----, 132 N.W.2d 436, 440.

We think rule 86 was not designed to apply to the situation we have here, nor did it compel the dismissal of the action because of plaintiffs' delay in recasting their petition. This conclusion finds support in City of Des Moines v. Barnes, 237 Iowa 6, 20 N.W.2d 895; Morf v. Washburn, 250 Iowa 759, 94 N.W.2d 756; Rasmussen v. Rasmussen, 252 Iowa 414, 107 N.W.2d 114; and Zellmer v. Catlin, 253 Iowa 1080, 114 N.W.2d 925; Bombei v. Schafer, 242 Iowa 619, 626, 47 N.W.2d 842.

While the point need not be decided, we are not satisfied that if plaintiffs had not recast their petition to state a single cause of action in favor of both the injured employee and his employer's insurer, the employee's cause of action under Division I of the original petition would not have been for trial. See in this connection Price v. King, supra, 255 Iowa 314, 122 N.W.2d 318.

The order appealed from is

Affirmed.

All Judges concur except THOMPSON and LARSON, JJ., dissent.

THOMPSON, Justice (dissenting).

I understand how the majority decides this case, but I am in doubt as to why. I know the result, but do not understand the reason.

The majority cites no authority for its decision. So far as I can discover any basis for the ruling made, it is that the court was busy and perhaps did not have time to consider the application for continuance during the term; it had inherent power to continue the application for continuance to the next term; it had discretion to continue the matter to the next term; and 'We don't think the language of the rule of...