Brown v. Iowa Dist. Court for Polk County, 61111
| Citation | 272 N.W.2d 457 |
| Decision Date | 20 December 1978 |
| Docket Number | No. 61111,61111 |
| Parties | Marian BROWN, Cecelia Franklin, and Dr. Anthony Brown, Plaintiffs, v. The IOWA DISTRICT COURT FOR POLK COUNTY, Defendant. |
| Court | Iowa Supreme Court |
Robert G. Riley, of Duncan, Jones, Riley & Finley, Des Moines, for plaintiffs.
Michael E. Runyon, Des Moines, for defendant.
Considered en banc.
This is a certiorari action brought with our permission to test an order of the Honorable Gibson C. Holliday reinstating a case which had been previously dismissed under the provisions of Rule 215.1, Rules of Civil Procedure. We sustain the writ and reinstate the order of dismissal.
This matter had its inception when Knapp Real Estate Sales, Inc. filed a breach-of-contract action against Marian Brown, Cecelia Franklin, and Dr. Anthony Brown, who are the plaintiffs in this certiorari action. On August 8, 1975, when the case had been pending almost two years, the clerk of court gave a try-or-dismiss notice as required by rule 215.1, advising the parties the case was subject to dismissal on January 1, 1976, unless sooner tried or continued by order of court. Thereafter the case was continued three separate times by order of court, each time to a designated date. The last date fixed for trial was June 28, 1976. It was not tried then nor was any further continuance requested or granted.
On January 3, 1977, the clerk dismissed the case pursuant to the rule. Nothing further was done until September 9, 1977, when Knapp Real Estate Sales, Inc. filed an application to set aside the dismissal. The motion was granted ex parte. This is the order plaintiffs seek to set aside.
The purpose of rule 215.1 has been commented upon a number of times. It is to clear the docket of dead cases and to assure the timely and diligent prosecution of those cases which should be brought to a conclusion. Its application is perhaps at times harsh, as indeed it must be if it is to accomplish what it is designed to do. Kutrules v. Suchomel, 258 Iowa 1206, 1212, 141 N.W.2d 593, 597 (1966); Talbot v. Talbot, 255 Iowa 337, 340, 122 N.W.2d 456, 458 (1963).
From our previous decisions interpreting this rule several general principles have evolved. One is that a case may not be continued after a 215.1 notice has been given without an order of court upon application and notice. Kutrules v. Suchomel, 258 Iowa at 1212-13, 141 N.W.2d at 597; Windus v. Great Plains Gas, 254 Iowa 114, 125, 116 N.W.2d 410, 416 (1962).
When a case is continued, it is not removed from the operation of the rule except that the date of trial is changed. In all other respects the rule remains operative. McKinney v. Hirstine, 257 Iowa 395, 398, 131 N.W.2d 823, 825 (1965). If the order continuing the case is not complied with, the case stands dismissed.
Defendant contends the case could not be stricken because on the trial date fixed by the last order of continuance there was pending a motion for summary judgment. We have held to the contrary in a number of cases. The fact that other matters, such as motions, are pending and undisposed of does not operate as an automatic continuance. Even then the obligation to obtain a continuance persists if dismissal is to be avoided. McKinney v. Hirstine, 257 Iowa at 398-99, 131 N.W.2d at 825 (undisposed of motions); Talbot v. Talbot, 255 Iowa at 339, 122 N.W.2d at 457 (); Windus v. Great Plains Gas, 254 Iowa at 128-29, 116 N.W. at 418-19 ().
We have also established that when the time for dismissal arrives, the case is dismissed automatically without formal action by either the court or the clerk. Failure to note the dismissal of record does not save the case. Werkmeister v. Kroneberger, 262 N.W.2d 295, 296 (Iowa 1978); Baty v. City of West Des Moines, 259 Iowa 1017, 1023-24, 147 N.W.2d 204, 208 (1966); McKinney v. Hirstine, 257 Iowa at 399, 131 N.W.2d at 826.
Applying these various principles to the factual situation now before us, we conclude this case was dismissed under rule 215.1 when it was not tried on the date fixed (June 28, 1976) and no further continuance was obtained. As already...
To continue reading
Request your trial
-
Vinson v. Linn-Mar Community School Dist.
...despite the harsh result when a party has not obtained a continuance in accordance with the rule. See, e.g., Brown v. Iowa District Court for Polk County, 272 N.W.2d 457 (Iowa 1978). They assert that an order that fails to continue the case to a date certain is In material part, rule 215.1 ......
-
Gold Crown Properties, Inc. v. Iowa Dist. Court for Pottawattamie County
...had been submitted to the court and were under its consideration. This is the distinguishing difference between Brown v. Iowa District Court, 272 N.W.2d 457, 458-59 (Iowa 1978), relied on by Gold Crown, and Humboldt Livestock Auction, Inc. v. B & H Cattle Co., 261 Iowa 419, 422-26, 155 N.W.......
-
Glenn v. Farmland Foods, Inc., 83-451
...cases and to assure the timely and diligent prosecution of those cases which should be brought to a conclusion," Brown v. Iowa District Court, 272 N.W.2d 457, 458 (Iowa 1978) (emphasis added), we cannot say that trial court's denial of a continuance fell without the broad abuse of discretio......
-
Rhiner v. Arends, 63590
...first notice, or any notice. While not involving the precise problem we now face, the rationale we applied in Brown v. Iowa District Court, 272 N.W.2d 457, 458 (Iowa 1978), is more When a case is continued, it is not removed from the operation of the rule except that the date of trial is ch......