Baty v. City of West Des Moines

• Decision Date: 13 December 1966
• Docket Number: No. 52216,52216
• Parties: Owen C. BATY and Esther P. Baty, Appellees, v. CITY OF WEST DES MOINES, Iowa, and Wilbur T. Hildreth, Sheriff of Polk County, Iowa, Appellants.
• Court: Iowa Supreme Court

Page 204

147 N.W.2d 204

259 Iowa 1017

Owen C. BATY and Esther P. Baty, Appellees, v. CITY OF WEST DES MOINES, Iowa, and Wilbur T. Hildreth, Sheriff of Polk County, Iowa, Appellants.

No. 52216.

Supreme Court of Iowa.

Dec. 13, 1966.

Jack W. Rogers, Des Moines, for appellant City of West Des Moines, iowa.

Beving & Swanson, Des Moines, for appellees.

LARSON, Justice.

This permitted interlocutory appeal involves the interpretation of rule 215.1, Rules of Civil Procedure. We have previously interpreted the rule in Kutrules v. Suchomel, Iowa, 141 N.W.2d 593; McKinney v. Hirstine, 257 Iowa 395, 131 N.W.2d 823; Fischer v. Hauber, 257 Iowa 793, 134 N.W.2d 918; Seela v. Haye, 256 Iowa 606, 128 N.W.2d 279; Talbot v. Talbot, 255 Iowa 337, 122 N.W.2d 456; Gammel v. Perry, 256 Iowa 1129, 130 N.W.2d 550; and Windus v. Great Plains Gas, 254 Iowa 114, 116 N.W.2d 410.

Here we have an appeal from an order of the district court granting appellees' application for reinstatement under rule 215.1 as amended by chapter 487, Laws of the Sixty-first General Assembly, (S.F.355) effective July 4, 1965, which order set aside a previous court order dismissing appellees' cause of action without prejudice, when they permitted the time for trial of their cause, properly continued to the November 1963 term, to pass without seeking or obtaining any court assignment or order of continuance until after several succeeding terms had passed.

The facts are not in serious dispute. A timely appeal from the award of a sheriff's jury was filed by plaintiffs on June 15, 1962, claiming damages for right of way for the construction of a sanitary sewer in West Des Moines. The city, which we shall refer to as the defendant, filed its answer on September 13, 1962. On August 14, 1963, the clerk of the district court sent 'try or dismiss' notices to the then attorneys of record as required by rule 215.1. The case was not tried during the September term, but a stipulation of continuance was timely approved by the court continuing the matter until the November 1963 term of court, and it was assigned for trial the week commencing December 16, 1963. However, the case was not tried during that week and no stipulation or enrolled order was entered therein until the 30th day of October, 1964. It appears there were discussions between counsel concerning possible settlement of the case or a pre-trial conference during the latter part of December, 1963, and a report of this conference was made to the presiding judge. He suggested that counsel arrange a conference right after the first of January. But the case was not reassigned and no stipulation or court order was obtained continuing the case to the January term. On or about January 17, 1964, it appears the attorneys met with the judge to discuss various law points involved in the case, but plaintiffs did not file any certificate of readiness or press for immediate trial. There was no specific assignment of the case for trial until the September 1964 term when, pursuant to a second clerk's notice, it was placed in the assignment.

Thereafter, on plaintiffs' application for a continuance under rule 215.1 until the November 1964 term, the court approved but reserved all the rights of the parties therein 'without prejudice to either party.'

On like applications and orders this matter was further continued to the January 1965 term, the March 1965 term, and the May 1965 term.

In the meantime, on August 15, 1964, the second notice pursuant to rule 215.1 was mailed to the attorneys of record in this cause. On September 4, 1964, pursuant to R.C.P. 66, defendant filed a special appearance for the 'sole purpose of challenging the jurisdiction' of the court to consider the subject matter of the suit, contending that in accordance with rule 215.1, R.C.P., the cause should have been dismissed after the covening of the January 1964 term. Plaintiffs' resistance filed September 11, 1964, stated inter alia that plaintiffs' attorney had advised defendant's attorney in May 1964 that plaintiffs would be ready for trial during the September 1964 term, that counsel agreed or had not objected thereto, that the case was placed in the jury assignment for September, and that since that time they have been ready for trial. They asked, because of the 'unusual circumstances' reflected by the record, that the special appearance be overruled. After considerable delay, the trial court on July 29, 1965, without passing upon the special appearance issue, entered an order finding there were no orders properly continuing this case, and dismissed it without prejudice at plaintiffs' costs.

On August 5, 1965, the plaintiffs filed an application for reinstatement pursuant to the amendment of rule 215.1 by the Sixty-first General Assembly setting out an affidavit of the former counsel for the plaintiffs now residing in another state, and predicating their request on the claim that the failure to obtain a court order for a continuance between January 1964 and October 1964 was an oversight or mistake on the part of prior counsel, who desired to have the case tried at the court's convenience.

Resistance on behalf of the defendant was filed on August 11, 1965, alleging that the rule in effect in January 1964 and the succeeding months called for a mandatory dismissal.

On August 20, 1965, the defendant City of West Des Moines amended its resistance to plaintiffs' application for reinstatement calling the court's attention to the fact that more than six months had passed since the end of the November 1963 term and that the provisions of chapter 487, Acts of the Sixty-first General Assembly, were not applicable to the facts of this case.

Upon proper applications thereafter, court orders were obtained to continue the matter through the November 1965 term, the January 1966 term, and the March 1966 term, without prejudice to any rights of the parties signing the stipulation for continuance.

On March 11, 1966, the trial court found there had been a proper showing by plaintiffs to entitle them under rule 215.1 as amended to reinstatement of their case, and set aside the dismissal entered on July 29, 1965. The City of West Des Moines appealed.

I. The Sixty-first General Assembly, in chapter 487, amended rule 215.1, R.C.P., by merely adding: 'The trial court may, in its discretion, and shall upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed. Application for such reinstatement, setting forth the grounds therefor, shall be filed within six months from the date of dismissal.' (Emphasis supplied.)

It is obvious the legislature, presumed to know the construction placed upon this rule by the court, was satisfied with that construction, except it desired that a way be provided for a reinstatement of the dismissed action when, by application timely filed, a good and sufficient cause was shown. It further provided the time limit in which the aggrieved party could act, thus maintaining the object and purpose of the rule, i.e., to discourage dilatory tactics and require 'reasonable diligence' to see that court actions are brought to trial promptly and to clear court dockets of old or stale cases that were being kept alive for other reasons than immediate trial. In effect, then, the legislature approved our prior interpretation that, without a proper continuance, the dismissal of a cause noted for trial or dismissal was 'mandatory and automatic.' See McKinney v. Hirstine, supra, 257 Iowa 395 at page 826 of 131 N.W.2d.

Appellant contends that this cause had been terminated in January 1964, or at least at the commencement of the March 1964 term, that this was over a year before the 215.1 amendment became effective, and that the court erred in finding the amendmen applied to it. We agree. Plaintiffs' application for reinstatement was made on August 5, 1965, and unless it be held that such a cause is not dismissed until there is an entry of a formal court order dismissing it, the application was not timely. We cannot so hold. Neither the failure of the clerk to delete the case from the docket nor the delay of the court in entering a dismissal order can add to plaintiffs' rights.

II. We have consistently held it is the duty of the party desiring the court to retain jurisdiction of his matter at the end of the 'try or dismiss' term, to file a timely application and secure a court order continuing the case to a future term or date. We said in Windus v. Great Plains Gas, 255 Iowa 587, 595, 122 N.W.2d 901, 906, 'the negligence of an attorney is chargeable to his client,' and pointed out on page 597, 122 N.W.2d page 907 that if the case is not listed for trial, 'reasonable care dictates the filing of an application for continuance.' In McKinney v. Hirstine, supra, 257 Iowa 395, 131 N.W.2d 823, 825, we said: 'That there are undecided motions, or applications, or even that the case is not at issue, may well be persuasive grounds for a continuance; but if none is asked and granted, the rule (215.1) is mandatory.' In Kutrules v. Suchomel, supra, Iowa, 141 N.W.2d 593, 597, upon which appellees rely, it is said: 'When time passed without compliance with the requirements of the rule the court was without jurisdiction to do anything but dismiss the case.' Also see Talbot v. Talbot, supra, and Gammel v. Perry, supra.

It would thus appear the entry of a dismissal, whether it be by court order or by clerk deleting the case from the docket, the time of dismissal referred to in this rule is the time when the plaintiff fails to comply with the requirements of the rule. Nowhere in the rule is there any duty placed upon defendant to move the court for an order of dismissal, nor are there any provisions for a hearing and ruling on such a motion. A requirement of that kind would all but annihilate the rule and make defendant's rights depend on that unauthorized procedure. It would result in...