Des Moines Union Ry. Co. v. District Court of Polk County

• Decision Date: 21 June 1915
• Docket Number: 30518
• Citation: 153 N.W. 217,170 Iowa 568
• Parties: DES MOINES UNION RAILWAY COMPANY, Complainant, v. DISTRICT COURT OF POLK COUNTY, Respondent
• Court: Iowa Supreme Court

153 N.W. 217

170 Iowa 568

DES MOINES UNION RAILWAY COMPANY, Complainant, v. DISTRICT COURT OF POLK COUNTY, Respondent

No. 30518

Supreme Court of Iowa, Des Moines

June 21, 1915

Appeal from Polk District Court.--HON. LAWRENCE DE GRAFF, Judge.

CERTIORARI to review certain proceedings had in the district court in a certain action in which W. T. Shaver was plaintiff and the complainant herein was defendant. The facts are stated in the opinion.--Annulled.

Writ of certiorari sustained and order Annulled.

Parker Parrish & Miller, for complainant.

A. P Chamberlain and E. D. Smith, for respondent.

WEAVER J. DEEMER, C. J., EVANS and PRESTON, JJ., concur.

OPINION

WEAVER, J.

A vehicle belonging to Shaver was injured in a collision with a locomotive belonging to the railway company, and he brought suit in the district court of Polk county to recover damages. Said action was begun for the January, 1911, term of the court, and the railway company appeared thereto and filed an answer, taking issue upon the material allegations of the petition. On June 10, 1913, considerably more than two years after issues joined in said cause, the court, in accordance with the practice prevailing therein, gave public notice that on June 20th and 21st, the calendar would be called for the dismissal of cases liable to such disposition, the notice being published as was usual in that court in the Des Moines Daily Record, pursuant to a rule by which all cases remaining upon the calendar for more than three terms without trial were subject to summary disposition. On June 20, 1913, said cause was called and an entry made as follows: "It is hereby ordered that this case be and the same is hereby dismissed at plaintiff's costs." So far as shown, neither party was present, or, if present, neither made any objection to the order. Some six months later and after another term of court had intervened, a motion was filed by the plaintiff therein to reinstate the cause; but no notice thereof was served upon the railway company or its counsel, though a minute of its filing was published in the Daily Record. On January 17, 1914, a ruling was entered sustaining the motion and ordering a reinstatement of the case. An exception by the company was also noted in the calendar, but it is conceded that it did not appear to such motion and was not there represented by counsel. A minute of this order was also published in the Daily Record. Thereafter, Shaver, by his counsel, filed trial notices in this cause for the January, March, May, September, and November, 1914, terms of court, but no court action was taken thereon until, at the January, 1915, term, it was assigned for trial on January 20th. It was again assigned at the March term, and on March 24, 1915, having been reached in its order, was called for trial, and the railway company not appearing, judgment was entered in Shaver's favor for $ 285.00. At no stage of the proceedings after the dismissal of the action on June 20, 1913, was any notice served upon the railway company or upon the counsel who had represented it in the prior proceedings, but a note or minute of each step taken and each order made therein was published in the Daily Record. When the case was finally called for trial, verbal notice thereof was given or sent to said counsel, who declined to act upon it or to appear or defend.

Upon this state of the record, the railroad company instituted this proceeding in certiorari, asking that the judgment against it be annulled as having been entered without jurisdiction. The return made to the writ of certiorari states the facts substantially as above recited, and the pivotal question we have to consider is whether the trial court acted within the scope of its authority in reinstating the cause after entry of the judgment of dismissal.

Passing for the moment the effect of the publications in the Daily Record and the knowledge by the counsel who had represented the railway company in the earlier proceedings, we think it a well-settled proposition in this state that when a trial court, acting within its proper jurisdiction, has entered judgment dismissing an action, the case is to be treated as having been finally disposed of, and such judgment cannot be vacated and the action reinstated for trial without notice to the defendant. And this is especially true if the term at which the judgment of dismissal is entered is allowed to pass without any application to vacate it. Hawkeye Ins. Co. v. Duffie, 67 Iowa 175, 25 N.W. 117; Townsend v. Wisner, 62 Iowa 672, 18 N.W. 304; Hamill v. Schlitz, 165 Iowa 266, 143 N.W. 99; Perry v. Kaspar, 113 Iowa 268, 85 N.W. 22; Wetmore v. Harper, 70 Iowa 346, 30 N.W. 611; Kwentsky v. Sirovy, 142 Iowa 385, 121 N.W. 27; Browne v. Kiel, 117 Iowa 316, 90 N.W. 624. See also Karrick v. Wetmore, 25 App. D.C. 415; Brady v. Ins. Co., 67 Ill.App. 159; Jenkins v. Corwin, 55 Ind. 21; Vincent v. Benzie, 139 Mich. 90, 102 N.W. 369.

Authority of a court to vacate a judgment after the term at which it is rendered is statutory (Code, title 20, chapter 1); and to give the court jurisdiction, the party against whom the motion or application is made must be served with notice after the manner of original notices for the commencement of an action (Code Sec. 4095). Without such service of notice or its acceptance or waiver, or an appearance by the party entitled thereto, an order vacating such judgment is necessarily void. Even where the order of vacation of a final judgment is made at the same term, the same rule has been applied by this court. In Hawkeye v. Duffie, 67 Iowa 175, 25 N.W. 117, the defendant appeared to an action in the district court and demurred to the petition. The demurrer was sustained, and plaintiff electing to stand on his petition, judgment was entered against him for costs. Later in the same term, the court set aside the judgment and permitted plaintiff to withdraw his election to stand upon his petition and to have thirty days in which to amend. No notice of this application or order was given the defendant and it did not appear thereto. Upon certiorari brought to test the validity of the order of vacation, it was held to be void as having been made without jurisdiction. In thus holding, the court said:

"Final judgment had been rendered. Ordinarily, when this has been done, the case is at an end, except that a motion for a new trial may be filed within three days thereafter. While it may be that the court had jurisdiction of the defendant during such period for the purposes of such a motion, the defendant was not bound to anticipate that the plaintiff would withdraw his election to stand on the petition, or that the court would permit him to do so and file an amended petition, and that the court would set aside the final judgment previously entered. The case having been disposed of by the rendition of the final judgment, the court ceased to have jurisdiction over the defendant in the action, and the defendant's attorney was not bound to remain in court, but could well leave as he did. It may be that the order was one that should have been made, and that substantial justice required the court in this instance to do so. But this is not the controlling consideration. The controlling question is one of jurisdiction, and it is evident, if the court did not have jurisdiction of the defendant in the action, that the expunging order is absolutely void. As the order was made in the absence of defendant in the action, no exception could be taken, and therefore an appeal would have been ineffectual. It is true, the defendant, when it obtained knowledge of the order, might have moved the court at the succeeding term to set it aside. But the defendant was not bound to do this if the court did not have jurisdiction to make the order at the time it did so."

In Callanan v. Lewis, 79 Iowa 452, 44 N.W. 892, an order entered without notice to the opposite party, setting aside a judgment at a former term, was held to be "absolutely...