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

Citation257 Iowa 921,135 N.W.2d 602
Decision Date08 June 1965
Docket NumberINC,No. 51640,BY-PRODUCT,51640
PartiesGerald O. ANDERSON, United States Fidelity & Guaranty Company, Appellees, v. NATIONAL, Appellant.
CourtUnited 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,
No. 51640.
Supreme Court of Iowa.
June 8, 1965.

[257 Iowa 922] 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

Page 603

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.

[257 Iowa 923] 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.

[257 Iowa 924] 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,

Page 604

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...

To continue reading

Request your trial
7 cases
  • Schimerowski v. Iowa Beef Packers, Inc., 53380
    • United States
    • United States State Supreme Court of Iowa
    • 13 Abril 1972 unable to indicate what further these claimants could have done to obtain the required ruling. In Anderson v. National By-Products, Inc., 257 Iowa 921, 135 N.W.2d 602 (1965) we held where motion for continuance was filed during the dismissal term, trial court retained jurisdiction to hea......
  • Lanning v. Landgraf
    • United States
    • United States State Supreme Court of Iowa
    • 14 Junio 1966
    ...N.W.2d 549, 551; Winneshiek Mutual Insurance Ass'n v. Roach, 257 Iowa 354, 359, 360, 132 N.W.2d 436, 440; Anderson v. National By-Products, Inc., 257 Iowa 921, 925, 135 N.W.2d 602, 604. We have not decided the exact question presented here although we have indicated a late filing following ......
  • Doland v. Boone County
    • United States
    • United States State Supreme Court of Iowa
    • 13 Noviembre 1985
    ...for ruling and was under advisement, to stand and not be subject to automatic dismissal. Plaintiffs cite Anderson v. National By-Products, Inc., 257 Iowa 921, 135 N.W.2d 602 (1965), to support the proposition that their motion for continuance on file prevented the case from automatically be......
  • Kohorst v. Iowa State Commerce Com'n, 69627
    • United States
    • United States State Supreme Court of Iowa
    • 16 Mayo 1984
    ...doing, the Lanning court relied upon and cited Morf v. Washburn, 250 Iowa 759, 94 N.W.2d 756 (1959), and Anderson v. National By-Products, Inc., 257 Iowa 921, 135 N.W.2d 602 (1965). Id. 259 Iowa at 402, 143 N.W.2d at 647. We conclude these latter cited cases do not support a policy of manda......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT