Dorman v. Credit Reference & Reporting Co.

• Decision Date: 09 February 1932
• Docket Number: No. 40974.,40974.
• Citation: 213 Iowa 1016,241 N.W. 436
• Court: Iowa Supreme Court
• Parties: DORMAN v. CREDIT REFERENCE & REPORTING CO. ET AL.

213 Iowa 1016

241 N.W. 436

DORMAN

v.CREDIT REFERENCE & REPORTING CO. ET AL.

No. 40974.

Supreme Court of Iowa.

Feb. 9, 1932.

Appeal from District Court, Polk County; Loy Ladd, Judge.

Action at law. Appeal from ruling of trial court overruling a motion for more specific statement. The facts appear in the opinion.

Reversed.

F. S. Dunshee, of Des Moines, for appellants.

A. D. Pugh, of Des Moines, for appellee.

GRIMM, J.

This is an action at law to recover the sum of $50,000 as alleged damages for the publication by the defendant of an alleged false report concerning the plaintiff in a credit reference and reporting book.

The petition attempts to state a cause of action based upon the publication of certain defamatory and libelous matter. Both general and special damages are asked. Briefly and in substance, it is alleged in the petition that the plaintiff has for more than five years last past been engaged in the business of selling school equipment in Des Moines and adjacent territory; that the appellant Des Moines Duplicating Company, with the knowledge of the officers thereof, communicated certain false and defamatory matter to the appellant Credit Reference & Reporting Company, touching the credit and integrity of appellee, and that, as a result thereof, he has suffered damages and injury to his business and earnings, to his reputation, good name and credit, and also disgrace, humiliation, and mental anguish. Exemplary damages are asked.

The allegations of the original petition are general and meager. Two amendments filed thereto state the cause of action with much greater regard to detail. We gather from the allegations of the amendments to the petition that appellants publish and circulate a book known as the credit reference book, in which the names of various citizens are published and opposite their names is the letter “P” which means “prompt pay,” or “R,” which means “require cash.” Published with the book is a key which explains the meaning of the letters designated. These publications are sold or circulated among retail merchants. In the second amendment to the petition, other letters and designations are referred to, which indicate “medium pay,” “Claims filed for collection,” and other designations.

Special damages are asked as follows: To business and earnings, including future loss thereto, $20,000; injury to reputation, good name, credit, and standing, $10,000. It also alleges in its petition that, after the publication complained of, appellee was refused credit by several retail merchants in the city of Des Moines; that the credit reference book is circulated around and is in the possession of about 500 subscribers.

To this petition the defendant, appellant, filed a motion for more specific statement, in which the court is asked to require appellee to state specifically the names of customers whom he has lost, in what particulars his earnings and business have been injured, the names of the merchants in Des Moines to whom he applied and was denied credit, and for some further details touching the claims for special damages. The motion for more specific statement was supported by affidavits signed by the general manager of the Credit Reference & Reporting Company, affirming in substance that the appellants cannot properly prepare their case for trial without the information sought. The motion was overruled, and the defendants appeal directly to this court from such ruling. There is no appearance by appellee, and no question is raised as to the right of defendants to appeal from the ruling of the court on the motion for more specific statement.

In view of some apparent conflicts, discrepancies, and uncertainties in former decisions of this court touching the right of appeal from intermediate and interlocutory rulings of the district court, we have deemed it advisable to review our prior decisions on the subject and to more specifically and definitely point out and state the rules governing appeals from the district to the Supreme Court from such rulings and orders.

Section 12823 (Code) provides that appeals may be taken from certain rulings and orders of the court prior to and without the formality of a judgment upon the merits. This section is as follows:

“An appeal may also be taken to the supreme court from:

1. An order made affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment from which an appeal might be taken.

2. A final order made in special actions affecting a substantial right therein, or made on a summary application in an action after judgment.

3. An order which grants or refuses, continues or modifies, a provisional remedy; grants or refuses, dissolves or refuses to dissolve, an injunction or attachment; grants or refuses a new trial; sustains or overrules a demurrer in a law action; or sustains or overrules a motion to dismiss in an equitable action.

4. An intermediate order involving the merits or materially affecting the final decision.

5. An order or judgment on habeas corpus.”

The questions for decision are, first, Does the ruling complained of involve the merits or a substantial right of appellant in the action? and, second, Does such ruling inhere in the final judgment in such sense that it may be reviewed on appeal therefrom?

[1][2] It is not always easy to determine whether an intermediate order necessarily involves the merits or materially affects the final decision. The test by which the right of appeal from an intermediate order is to be determined is: Will the party aggrieved thereby be deprived of some right which cannot be protected by an appeal from the final judgment? Crum v. Emmett, 191 Iowa, 797, 183 N. W. 383;McClurg & Walker v. McEvoy, 188 Iowa, 752, 176 N. W. 673;In re Estate of Dodge, 194 Iowa, 572, 189 N. W. 759;Smith v. Morrison, 203 Iowa, 245, 212 N. W. 567;Morrison v. Carroll Clinic, 204 Iowa, 54, 214 N. W. 705;Schoenhofen Brewing Co. v. Giffey, 162 Iowa, 204, 143 N. W. 1017;In re Estate of Stone, 132 Iowa, 136, 109 N. W. 455, 10 Ann. Cas. 1033;State v. Railway Co., 135 Iowa, 694, 109 N. W. 867;First National Bank v. Dutcher, 128 Iowa, 413, 104 N. W. 497, 1 L. R. A. (N. S.) 142;Price v. Ætna Ins. Co., 80 Iowa, 408, 45 N. W. 1053;Bicklin v. Kendall et al., 72 Iowa, 490, 34 N. W. 283. If an intermediate ruling or order affecting the merits inheres in the final judgment and may be reviewed upon appeal therefrom, direct appeal from such ruling or order is not permissible. Crum v. Emmett, supra; McClurg & Walker v. McEvoy, supra.

Applying the test stated, this court has held in many cases that an appeal directly from the ruling or order of the court and without the entry of final judgment is permissible. These cases, a few of which will presently be cited and the point involved briefly stated, will suffice to illustrate to some extent at least the interpretation placed upon the statute and of the effect upon the merits of the particular ruling complained of.

It was held in Lane v. B. & S. W. R. Co., 52 Iowa, 18, 2 N. W. 531, that the ruling of the court sustaining a motion for more specific statement was proper, and the ruling was sustained. Similarly, the court held in Schoonover v. Hinckley, 46 Iowa, 207, that a motion for more specific statement of certain facts material to the cause of action should have been sustained, and the ruling was reversed.

Mahaska County State Bank v. Christ, 82 Iowa, 56, 47 N. W. 886 involved a ruling of the court sustaining a motion to dismiss a cross-petition. The court held that the ruling was proper, and overruled a motion to dismiss the appeal.

In Carney Bros. v. Reed, 117 Iowa, 508, 91 N. W. 759, it was held that an appeal may be taken from the ruling of the court permitting the plaintiff to dismiss his cause of action without prejudice after submission.

The court in Chamberlain v. Brown, 144 Iowa, 601, 123 N. W. 161, expressed itself as generally opposed to an appeal from an order of the court refusing a temporary injunction.

In Bicklin v. Kendall et al., supra, it was held that an appeal will lie from an order overruling a motion to strike an amended petition of intervention from the files. In this case, the right of intervener to recover upon his cross-petition was involved.

Price v. Ætna Ins. Co., supra, involved the overruling of a motion to transfer certain issues in an action commenced at law to equity for trial. The court held the order appealable. See, also, First National Bank v. Dutcher, supra.

It was held in Barnes v. Century Savings Bank, 149 Iowa, 367, 128 N. W. 541 that an appeal may be taken from the ruling of the court upon a motion to strike parts of a pleading.

Perhaps the case most directly in point on the subject is Northwestern Trading Co. v. W. L. S. Ins. Co., 180 Iowa, 878, 163 N. W. 350. The writer of the opinion in this case reviewed a large number of our prior decisions, reiterated the test by which the right of an appeal is to be determined, and held specifically that an appeal will lie from an order overruling a motion for more specific statement. Other cases of similar import are State v. Railway Co., supra; In re Estate of Stone, supra; Schoenhofen Brewing Co. v. Giffey, supra. In numerous other cases, the right of appeal from an intermediate or interlocutory order has been denied.

In Jordan Co. v. Sperry Bros., 141 Iowa, 225, 119 N. W. 692, it was said that the matter of striking a pleading is so much within the discretion of the trial court that generally an appeal will not lie from such ruling.

In Watters v. City of Waterloo, 126 Iowa, 199, 101 N. W. 871, it was held that, as a party has the right to plead his cause of action in different counts, an appeal will not lie from a ruling on a motion to require the pleader to elect upon which count he will stand.

In Devier v. Economic Life Ass'n, 106 Iowa, 683, 77 N. W. 454, it was held that no appeal will lie from an order directing the production of books....