Baff v. Waller & Waller

• Decision Date: 10 December 1917
• Docket Number: 31521
• Citation: 165 N.W. 308,181 Iowa 1072
• Parties: HARRY BAFF, Appellee, v. WALLER & WALLER et al., Appellants
• Court: Iowa Supreme Court

165 N.W. 308

181 Iowa 1072

HARRY BAFF, Appellee, v. WALLER & WALLER et al., Appellants

No. 31521

Supreme Court of Iowa, Des Moines

December 10, 1917

Appeal from Floyd District Court.--M. F. EDWARDS, Judge.

APPEAL from an order of the district judge, made at chambers in another county, vacating and setting aside a judgment dismissing a cause of action for want of prosecution.--Annulled.

Judgment Annulled.

F. & F M. Lingenfelder, for appellant.

J. H Lloyd, for appellee.

STEVENS J. GAYNOR, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

STEVENS, J.

On November 18, 1915, plaintiff filed a petition in the above cause in the office of the clerk of the district court of Floyd County, signed by H. L. Lockwood, an attorney residing at Forest City, and Edwin S. McCrary, an attorney residing at Kansas City, Missouri. At the January, 1916, term of said court, counsel appeared for the defendant and filed motion to require plaintiff to give security for the costs, which motion was never called to its attention or passed upon by the court. At the March, 1916, term, H. L. Lockwood withdrew his appearance as attorney for plaintiff, and, upon the oral motion of counsel for defendant, said cause was by the court dismissed with prejudice, for want of prosecution.

It is claimed by counsel for appellee that, on June 19, 1916, he appeared at the office of the clerk of the district court of Floyd County, and tendered a cash cost bond in the sum of $ 100, at which time he was informed by the clerk that said cause had been dismissed. On June 26, 1916, the attorneys for the respective parties submitted a motion on application of plaintiff, and the resistance and objections thereto of defendant, to Judge Edwards (who presided, when the judgment of dismissal was entered) at chambers at Parkersburg in Butler County. The record herein does not disclose whether said application and resistance and objections thereto were filed in the office of the clerk of the district court of Floyd County before or after the submission thereof to Judge Edwards, but same were filed before the adjournment of the March term of court. The record, however, does disclose that the hearing at Parkersburg before the district judge was upon 3 days' notice given by counsel for plaintiff to the defendant, upon the order of said district judge setting said application down for hearing at Parkersburg upon proof of service of such notice. Attached to plaintiff's application or motion for the reinstatement of said cause are several affidavits; and the objections or resistance of defendant thereto, which are numerous, were also supported by affidavits.

On August 5, 1916, the district judge caused his finding and order sustaining said motion to be filed in the office of the clerk of the district court of Floyd County, the material part of which is as follows:

"The plaintiff now by his counsel, J. H. Lloyd, files an application to set aside such order and to have said cause reinstated upon the court docket. Defendants appear by their counsel, F. & F. M. Lingenfelder, and file herein their objections to the above-mentioned application to reinstate said cause. Upon notice, said cause is set down for hearing at chambers at Parkersburg, Iowa, June 26, 1916, and at said time and place counsel representing the parties appear, and a hearing is had on said motion and the objections filed thereto and the matter submitted to the court, and by agreement was taken under advisement by the court. * * * It is therefore ordered that the entry of dismissal of said cause, as hereinabove set out, is annulled and set aside, and said cause reinstated on the court docket as prayed in the application of the plaintiff, all on condition that plaintiff at once file with the clerk a cost bond in the sum of...