Armentrout v. Baldwin

• Decision Date: 13 January 1914
• Citation: 144 N.W. 1003,163 Iowa 410
• Parties: ARMENTROUT v. BALDWIN ET AL.
• Court: Iowa Supreme Court

163 Iowa 410

144 N.W. 1003

ARMENTROUT

v.BALDWIN ET AL.

Supreme Court of Iowa.

Jan. 13, 1914.

Appeal from District Court, Cedar County; W. N. Treichler, Judge.

Action at law upon a promissory note. A writ of attachment was sued out therein. An independent action was brought by the defendants against the plaintiff upon the attachment bond. These actions were consolidated, and were tried together under the title of the first case; the second being treated as a counterclaim in the first. There was a directed verdict for the plaintiff, and the defendants appeal. Affirmed.Remley & Calkins, of Iowa City, for appellants.

R. R. Leech and E. A. Johnson, of Lisbon, for appellee.

EVANS, J.

The plaintiff brought his action upon a note not yet due. He asked for a writ of attachment, but did not ask for judgment prior to the maturity of the note. The defendants interposed no defense to the note, but prosecuted only their cross-action on the attachment bond for damages for the wrongful issuing of the attachment. The consolidated case was tried in December, 1911. On December 7, 1911, judgment was entered dismissing the cross-action and taxing the costs to the defendants. The main action was continued to a future day, awaiting the maturity of the note. On December 7, 1911, the defendants perfected an appeal to this court from the judgment entered on such date, and shortly thereafter filed a supersedeas bond in the office of the clerk of the district court, and stayed the judgment thereby.

1. The appellee has filed a motion in this court to dismiss the appeal because the appellants failed to file their abstract in this court in time for the May, 1912, term, as required by the rules. Appellants' resistance to this motion is based upon the claim that on April 15, 1912, they dismissed their first appeal, and that on April 23, 1912, they served a second notice of appeal, and that such second notice was within six months from the date of judgment; that under the appeal then perfected, they filed their abstract within the time provided by the rules. The contention of appellee is that the attempted dismissal of the appeal on April 15, 1912, was ineffective, in this: That it was filed only in the office of the clerk of the district court, and not in this court.

[1] It may be conceded that the method adopted by the appellants was not technically the proper method of dismissing an appeal pending in this court. The method adopted, however, was sufficient to be binding upon the appellants themselves. The appellants contend that the conduct of the appellee, with knowledge of such attempted dismissal, was such as to amount to a waiver of any defect in the method adopted, and to a waiver of his right to ask an affirmance for failure to file an abstract under the first appeal. Certain conceded correspondence between the attorneys of the parties is set out. Under the first notice of appeal an abstract was due from the appellants in time for the May, 1912, term. The dismissal of the first appeal purported to be made upon the ground that it was prematurely taken before the actual entry of judgment. The second notice of appeal was served upon the appellee upon April 23d. If the present position of appellee is tenable, he was entitled to present his motion to affirm at the May, 1912, term. He did not do so. In August, 1912, and before appellants' abstract was filed, the correspondence referred to shows that counsel for appellee required that a new supersedeas bond should be filed under the second appeal, or that the first bond should be refiled therein. This demand was complied with by appellant. Thereafter the appellants filed their abstract. Following this, counsel for appellee requested time to prepare amended abstract, and such request was granted. Such amendment was filed on October 31st. The larger part of this amended abstract dealt with the merits of the case, and was not material to a consideration of the point now made. Appellee presented to this court no motion to affirm at the September term; nor yet at the January, 1913, term until March 13th, being the third period of such term. No explanation is offered for such delay. Pending such delay, the appellants incurred large expense in preparing their case for submission on its merits, and the appellee knew it. We think the conduct of the appellee was a clear waiver of his right, if any, to an affirmance on motion.

In Newbury v. Lumber Company, 106 Iowa, 152, 76 N. W. 518, we said: “We are not to be understood as holding that the appellee, in all cases in which the appellant has failed to file an abstract within the time limited, and further time has not been granted, will be entitled to a dismissal or affirmance, on the filing of a motion with the necessary abstract or transcript. It is undoubtedly true that the right to a dismissal or affirmance may be waived by agreement or consent, or by failing to insist upon it, and perhaps in other ways, and that the...