Credit Indus. Corp. v. Miller

• Decision Date: 10 December 1963
• Docket Number: No. 51178,51178
• Citation: 125 N.W.2d 142,255 Iowa 1022
• Parties: CREDIT INDUSTRIAL CORPORATION, Appellant, v. E. C. MILLER, d/b/a Miller Truck Service, Inc. Ruthven, Iowa.
• Court: Iowa Supreme Court

Page 142

125 N.W.2d 142

255 Iowa 1022

CREDIT INDUSTRIAL CORPORATION, Appellant, v. E. C. MILLER, d/b/a Miller Truck Service, Inc. Ruthven, Iowa.

No. 51178.

Supreme Court of Iowa.

Dec. 10, 1963.

Charles E. Miller, Des Moines, for appellant.

Jack H. Bedell, Spirit Lake, for appellee.

HAYS, Justice.

Law action seeking judgment on certain trade acceptances. This appeal involves, at least indirectly, two causes in said district court, being causes #17965 and #17915.

September 6, 1962, defendant filed in the office of Clerk of Court in Palo Alto County, an original notice in cause #17915 which stated the petition would be on file on or before July 31, 1962, together with what is called 'Special Appearance and Motion to Dismiss' for the reason such petition was not thus filed. September 11, 1962, such motion was sustained and cause dismissed at plaintiff's cost. December 11, 1962, plaintiff filed a petition in cause #17965, based upon the identical facts in cause #17915 and notice was duly served. December 27, 1962, defendant filed a motion to dismiss based upon doctrine of res adjudicata due to the dismissal of cause #17915. March 4, 1963, the trial court sustained the motion to dismiss the petition. March 14, 1963 plaintiff filed 'motion to vacate and set aside court's order dismissing plaintiff's action' in cause #17965. April 5, 1963, said motion was overruled and on April 25, 1963, plaintiff filed a notice of appeal to this court.

I. Appellee's first proposition relied upon for an affirmance is that the notice of appeal was not timely given.

Rule 335, R.C.P., 58 I.C.A., states 'Appeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment or decree, unless a motion for new trial or for judgment notwithstanding the verdict is filed as provided in rule 247, and then within thirty days after the ruling on such motion * * *'.

Rule 224, R.C.P., states 'The aggrieved party may, on motion, have an adverse verdict, decision or report or some portion thereof vacated and a new trial granted, for any of the following causes, but only if they materially affect his substantial rights * * *'. It must be conceded that none of the causes, set forth in rule 244, are found in plaintiff's motion.

Rule 247, R.C.P., states: 'Motions under rules 243 and 244 * * * must be filed within ten days after the verdict, report or decision is filed * * *'.

The record shows that the so called 'Motion to vacate and set aside court's order', filed March 14, 1963, was, as to time, timely under rule 247. It also is clear that the notice of appeal to this court was timely under rule 335. Appellee's contention is that since none of the causes set forth in rule 244, appear in plaintiff's motion to vacate, no additional time for giving notice of appeal under rule 335 should be allowed. Such is not the rule. Furthermore such a contention, if adopted, would require this court to examine each motion filed under rule 244 to determine whether filed under rule 244 to determine whether jurisdiction existed. We do not adopt such and this court has jurisdiction. See Home Savings Bank v. Klise, 205 Iowa 1103, 216 N.W. 109.

II. The real issue involved in the appeal is whether or not a dismissal under Rule 55 is a dismissal on the merits.

It may well be noted that as a matter of procedure, neither the rules nor our decisions have been too closely followed, and the real question to be here determined was raised by what is known as a speaking demurrer. See Betz v. Sioux City, 239 Iowa 95, 30 N.W.2d 778; Williams-Perry v. Reeder, 235 Iowa 532, 17 N.W.2d 98. However since both counsel and the trial court appear to have waived this factor and considered the issue as properly raised, we will do likewise.

Rule 48, R.C.P., states: 'A civil action is commenced by serving the defendant with an original notice'.

Rule 50, R.C.P., requires that an original notice 'state either that the petition is on file in the office of the clerk of the court where the action is brought, or that it will be so filed by a stated date'.

Rule 55, R.C.P., states 'If the petition is not filed as stated in the original notice served, any defendant may have the case dismissed as to him, without notice, at plaintiff's cost; and may docket it for this purpose by filing his copy of the original notice, if need be'.

Rule 217, R.C.P., provides: 'All dismissals not governed by rule 215 or not for want of jurisdiction or improper venue, shall operate as adjudications on the merits unless they specify otherwise'.

It is conceded by all parties that the dismissal was under rule 55; was not governed by rule 215, R.C.P.; and did not provide it should be other than an adjudication on the merits. It is appellant's contention that by the failure to file the petition as stated in the original notice, the trial court failed to acquire jurisdiction and thus it is within the exception noted in rule 217. In re Estate of Ferris, 234 Iowa 960, 14 N.W.2d 889.

Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings belong. Harvey v. Prall, 250 Iowa 1111, 1116, 97 N.W.2d 306; Christensen v. Board, 251 Iowa 1259, 105 N.W.2d 102. It will be noted that rule 55 provides for a dismissal and allows the filing of the original notice, 'if need be'. If the petition has been filed between the time stated in the notice and the time of defendant's motion, under rule 55, the nature of the case (to determine jurisdiction of the subject matter) may be determined therefrom by the trial court. If no petition, the rule provides for filing the defendant's copy of the original notice which, for this purpose, serves the same as a petition. There seems no doubt but that the trial court had jurisdiction over the subject matter, which was to collect on some trade acceptances.

The exact question here has never been squarely answared by this court. It is whether or not the right to a dismissal under rule 55 is based upon a lack of jurisdiction in the trial court.

While rule 55 has...