City of Des Moines v. Barnes
| Decision Date | 11 December 1945 |
| Docket Number | 46747. |
| Citation | 20 N.W.2d 895,237 Iowa 6 |
| Parties | CITY OF DES MOINES v. BARNES. |
| Court | Iowa Supreme Court |
Walter F. Maley and F. G. Ryan, both of Des Moines for appellant.
F T. Van Liew, B. J. Flick, Paul Hewitt, and Harvey Bogenrief all of Des Moines, for appellee.
The City of Des Moines was the defendant in a prior action brought by Cornelius Ahern who recovered damages for injuries received as the result of a fall on a sidewalk on which ice had formed. A judgment was entered against the city and on appeal to this court the trial court was affirmed. Ahern v. City of Des Moines, 234 Iowa 113, 12 N.W.2d 296. The city of Des Moines then brought the present action against Walter B Barnes, the owner of the building on which there was a downspout that had deposited water on an adjacent sidewalk causing a forming of ice. The city claimed the defendant Barnes was primarily liable for the condition that resulted in the injuries to Ahern. In the present action various pleadings were filed by the plaintiff and defendant and after rulings thereon a judgment was entered against the defendant. He has appealed.
The record in the present action discloses the following facts. Subsequent to the bringing of the case of Ahern v. City of Des Moines a notice to appear and defend in that action was served on Walter B. Barnes by the city. Section 6735, also Section 6567, 1939 Code of Iowa. This notice stated that Ahern had been injured when he slipped on ice formed from water which had collected on the roof of the Barnes building and which was carried by means of a downspout and deposited on the adjacent walk. The notice further provided that in the event the city was found liable in the action brought by Ahern it would be because of the negligence of Barnes in permitting the water to flow from the downspout onto the walk; that the city of Des Moines claimed indemnity for all sums which it might be compelled to pay to Ahern by reason of the conditions existing at the time of his injuries; that in default of Barnes defending in said action the city would defend and would thereafter hold him responsible and would enforce payment for any judgment obtained against it by reason of the claimed accident and the action then pending. It is further shown that at the time the case of Ahern v. City of Des Moines was called for trial, counsel representing Walter B. Barnes appeared in court and inquired as to his status in the case and whether or not his presence was required. A discussion was had among the attorneys representing Barnes, the city, Ahern, and the court. It is shown that counsel for Ahern and the city expressed themselves to the court that the counsel representing Barnes should take no part in the case. It is further shown that there were no pleadings filed on behalf of Walter B. Barnes in the Ahern case. It is also disclosed that upon the previously referred to statements being made to the court counsel for Barnes left the court room and took no further action in connection with the trial of that case. As a result of the trial of the Ahern case a judgment was entered against the city.
The present action was commenced on April 14, 1944, when a petition was filed claiming recovery of Walter B. Barnes of the amount of the judgment the city had been required to pay in the action brought by Ahern against it. Thereafter the following pleadings were filed and proceedings had. On May 12, 1944, counsel for Barnes entered his appearance, in the action brought by the city; October 20, 1944, the city, appellee in the present action, filed a motion for summary judgment; October 24, 1944, an answer was filed on behalf of the appellant, Barnes; November 2, 1944, the appellee city filed a motion to strike the answer filed on October 24, 1944; November 24, 1944, a resistance was filed on behalf of the appellant, Barnes, to the motion for summary judgment and the motion to strike the appellant's answer and the attached affidavit. The motion to strike the appellant Barnes' answer was sustained on November 25, 1944 and on November 30, 1944, Barnes filed an amendment to the resistance to the motion for summary judgment and the motion to strike certain affidavits. On December 4, 1944, the appellee city's motion for summary judgment was overruled and thereafter on December 7, 1944, Barnes filed an answer. December 11, 1944, the city filed a motion to strike the answer filed December 7, 1944, and for default and on January 4, 1945, this last referred to motion was sustained. On January 10, 1945, proof was presented as to the amount of the damages sustained by the city and on January 23, 1945, judgment was entered against the appellant, Barnes, for the amount of $1080.50, with interest from January 3, 1944. On February 1, 1945, appellant, Barnes, filed a motion to set aside the default and judgment, which motion was overruled on February 3, 1945.
I. The appellant claims that the trial court committed error in sustaining appellee's motion to strike appellant's answer filed October 24, 1944, and asserts that by the filing of appellee's motion for summary judgment all of appellee's rights to default were waived. The applicable portions of Rule 85, Iowa Rules of Civil Procedure, which relate to time to move or plead, are as follows:
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