Bird v. Nelson, 41932.

• Decision Date: 20 June 1933
• Docket Number: No. 41932.,41932.
• Citation: Bird v. Nelson, 216 Iowa 262, 249 N.W. 393 (Iowa 1933)
• Parties: BIRD v. NELSON et al.
• Court: Iowa Supreme Court

216 Iowa 262

249 N.W. 393

BIRD

v.NELSON et al.

No. 41932.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

Appeal by plaintiff from a ruling of the court sustaining defendants' special appearance which challenged the jurisdiction of the court to entertain a pleading filed by plaintiff under Code, § 11017, in a case which had been tried and, before judgment had been entered, dismissed by plaintiff without prejudice.The court sustained the special appearance, and quashed the action, and plaintiff appeals.

Affirmed.Roy M. Harrop and Frank J. Stemler, both of Council Bluffs, for appellant.

Lynn S. Alberti, of Council Bluffs, for appellees.

MITCHELL, Justice.

On December 26, 1929, the appellant filed a petition in the district court of Iowa in and for Pottawattamie county against Olaf Nelson, John J. Nugent, and six other men, alleging that they were a copartnership doing business under the name of the People's Store, and charging a conspiracy to libel and slander the appellant.This cause came to issue, a jury was impaneled, and trial was had, and at the conclusion of the appellant's case a motion for a directed verdict was interposedby the appellees.On September 24, 1931, while the court was considering the motion for a directed verdict, and before the court had rendered its decision upon the motion for a directed verdict, and no doubt anticipating what the court was about to do, the appellant dismissed said action without prejudice, and judgment for costs was entered against the appellant.On the 17th of March, 1932, the appellant filed in the office of the clerk of the district court of Iowa in and for Pottawattamie county a pleading which he designated “Petition-Continuation of Original Action,” which pleading is entitled, “Lorenzo H. Bird, plaintiff, v. Olaf Nelson, John J. Nugent, et al., defendants,” and is a continuation of the original action filed December 26, 1929, and dismissed by appellant without prejudice on September 24, 1931.The amended and substituted petition which was filed in the original action on September 4, 1930, is referred to and made a part of this pleading, or, at least, it is so alleged by the appellant.On the 8th day of June, 1932, the defendants(appellees herein) filed in the district court of Iowa in and for Pottawattamie county in the above-entitled action a special appearance, which is as follows:

“Come now the defendants above named and each of them and appear specially for the sole and only purpose of attacking and questioning the jurisdiction of the court in this action for the following reasons and on the following grounds:

That the action which plaintiff seeks to continue and which he has designated as a ‘continuation of original action’ was in fact fully and completely dismissed by plaintiff without prejudice and at plaintiff's costs and that section 11017 of the 1931 Code of Iowa referred to by plaintiff in petition filed March 17th, 1932, contemplates a new action and that this action is not a new action but that plaintiff seeks to continue the original action after same has been fully and completely dismissed by plaintiff without prejudice and that the court has no jurisdiction of the subject matter or of the defendants in said so called ‘continuation of original action.”D'

The special appearance was submitted to the court, and same was sustained and the action dismissed.

It is the claim of the appellant here that under section 11017, when a new action is brought within the required time, it shall for the purpose therein...