Credit Indus. Co. v. Bendixen
| Citation | 125 N.W.2d 262,255 Iowa 1020 |
| Decision Date | 10 December 1963 |
| Docket Number | No. 51169,51169 |
| Parties | CREDIT INDUSTRIAL COMPANY, Appellant, v. Howard R. BENDIXEN, d/b/a Howard R. Bendixen Implement Co., Terrell, Iowa, Appellee. |
| Court | United States State Supreme Court of Iowa |
Charles E. Miller, Des Moines, for appellant.
Jack H. Bedell, Spirit Lake, for appellee.
This is a law action based upon certain trade acceptances wherein judgment is asked. Involved are two law actions based upon the same acceptances, being causes #13331 and #13361.
In cause #13331, an original notice, stating that the petition in the case would be on file on or before July 31, 1962, was served upon the defendant, appellee. No petition was ever filed and on August 28, 1962, defendant filed the original notice, together with what is termed 'Special Appearance and Motion to Dismiss'. September 11, 1962, the Court dismissed the case at plaintiff, appellant's costs. December 11, 1962, plaintiff filed a petition, case #13361, based upon the same trade acceptances and seeking the same relief as was asked in the original notice in case #13331, above referred to. December 26, 1962, the defendant filed a 'Motion' for a Dismissal in the case for the reason that said action has been previously commenced and dismissed in cause #13331, and hence current action is barred under the doctrine of res adjudicata. On February 13, 1963, plaintiff changed counsel, who filed resistance to the motion. April 5, 1963, the trial court sustained the motion to dismiss, and taxed costs in the sum of $37.31 to the plaintiff. April 25, 1963, notice of appeal to this Court was filed in the office of the Clerk of the District Court of Dickinson County, Iowa, at which time plaintiff paid the accrued costs in the case.
The principal issue involved here is whether or not a dismissal under Rule 55, R.C.P., 58 I.C.A., is a dismissal on the merits under Rule 217, R.C.P.
At the outset we are confronted with appellee's contention that an appeal will not lie where there has been compliance with and submission to the judgment from which the appeal is taken, as such compliance precludes the plaintiff from going on with the appeal.
While the authorities are not in accord upon this question, this court has passed thereon under facts, in effect, identical except that the judgment was satisfied before the notice of appeal was given, while here the giving of the notice and the satisfaction of the judgment were simultaneous. In Bates v. Nichols, 223 Iowa 878, 880, ...
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Peoples Trust & Sav. Bank v. Sec. Sav. Bank
...an appeal is not waived when judgment is paid after a notice of appeal is filed. The court relied on Credit Industrial Co. v. Bendixen, 255 Iowa 1020, 1022, 125 N.W.2d 262, 263 (1963), which held a party waives appeal when it satisfies a judgment before or simultaneously with a notice of ap......
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Starke v. Horak
...with the appeal. Ordinarily voluntary compliance with a judgment by a party requires dismissal of his appeal. Credit Industrial Co. v. Bendixen, 255 Iowa 1020, 125 N.W.2d 262. But this court does not have a wooden attitude about dismissal and we have held that payment of costs does not waiv......
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State ex rel. Iowa State Highway Commission v. Read
...728 (1897). It does not matter whether the payment occurs before or after notice of appeal is given. See Credit Industrial Co. v. Bendixen, 255 Iowa 1020, 125 N.W.2d 262 (1963). However, waiver is an affirmative defense; it is not jurisdictional. The issue cannot be raised by special appear......
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Peoples Trust & Sav. Bank v. Sec. Sav. Bank
...the judgment was paid, the waiver rule does not apply. In support of this argument, Security cites to Credit Industrial Co. v. Bendixen, 255 Iowa 1020, 1022, 125 N.W.2d 262, 263 (1963) ("[V]oluntary payment of a judgment by one against whom the judgment is entered precludes an appeal[.]"). ......