Dunkelbarger v. Myers

• Decision Date: 13 December 1930
• Docket Number: 40352
• Citation: 233 N.W. 744,211 Iowa 512
• Parties: W. B. DUNKELBARGER, Appellee, v. WILLIAM C. MYERS, Appellant. WILLIAM C. MYERS, Appellant, v. W. B. DUNKELBARGER et al., Appellees
• Court: Iowa Supreme Court

233 N.W. 744

211 Iowa 512

W. B. DUNKELBARGER, Appellee, v. WILLIAM C. MYERS, Appellant.

WILLIAM C. MYERS, Appellant, v. W. B. DUNKELBARGER et al., Appellees

No. 40352

Supreme Court of Iowa, Des Moines

December 13, 1930

Appeal from Polk District Court.--LESTER L. THOMPSON, Judge.

Two cases between these parties were submitted together, and the facts will appear in the opinion.

Affirmed.

Gillespie Moody & Stewart, for appellant.

Guy A Miller, for appellees.

ALBERT J. MORLING, C. J., and EVANS, STEVENS, FAVILLE, DE GRAFF KINDIG, and WAGNER, JJ., concur.

OPINION

ALBERT, J.

On the 23d day of December, 1924, W. B. Dunkelbarger filed a petition in equity against the defendant, William C. Myers. Issues were made up, and the case was assigned, and tried to the court on November 8, 1926, Honorable Lester L. Thompson presiding. At the close of the case, Judge Thompson took the case under advisement. On the 2d day of May, 1928, he entered a decree in favor of Dunkelbarger. During this time, a rule of court was in force in the Polk County district court to the effect that all cases which had been docketed for three consecutive terms without having been assigned, continued, or noted for trial would be dismissed for want of attention, on a date fixed by the court, unless satisfactory showing was made, etc. In pursuance of said rule, in November, 1927, the clerk of the court prepared a list of cases which he thought had not been assigned, continued, or noted for trial for three consecutive terms, in which was included the instant case, and notice of said proposed dismissal was published in the Des Moines Daily Record. On the date designated, to wit, December 10, 1927, Honorable O. S. Franklin, one of the judges of said court, entered an order dismissing this cause, which order was duly journalized. Two terms of court intervened between the making of this dismissal order and the judgment entry and decree entered on the 2d day of May, 1928. At the time this decree was entered, Judge Thompson's attention was called to the fact that, on the 10th day of December previous, Judge Franklin had entered an order dismissing the case; whereupon Judge Thompson entered an order setting aside said dismissal and reinstating the cause. Neither Myers nor his counsel was present at this time, and they had no knowledge or notice that Judge Franklin's order was to be set aside.

It appears that execution issued and levy was made under the judgment entered on said 2d day of May, 1928, and on August 10th following, Myers filed his petition in equity, asking that the sheriff be enjoined from selling, on the ground that the judgment entry made on the 2d day of May was null and void. Following this, on the 27th day of August, 1928, Myers filed a motion to set aside the judgment and to correct the journal entry, bottomed on the same grounds alleged in the injunction proceedings, to wit: that the judgment entered on the 2d day of May, 1928, by Judge Thompson was without jurisdiction, by reason of the fact that the case had been dismissed by the order of Judge Franklin on December 10, 1927.

On the 6th day of March, 1929, before Judge Thompson, the motion to set aside the judgment and to correct the journal entry and the motion to dissolve the temporary injunction were all submitted to the court on an agreed statement of facts, and on the 17th day of June, 1929, Judge Thompson overruled the motion, and entered a decree dismissing the injunction proceedings instituted by Myers; hence this appeal.

Stripped of all verbiage, the question is not only a narrow one, but a troublesome one. Simplified, the original case was tried on the 8th day of November, 1926, by Judge Thompson, and he took the same under advisement. On December 10, 1927, Judge Franklin entered an order dismissing the cause without prejudice, and on May 2, 1928, Judge Thompson, without the knowledge or notice of the defendant, set aside the order of Judge Franklin, reinstated the cause, and entered a decree.

The only oral evidence taken in the case, aside from the stipulated facts which we have summarized, is the testimony of Judge Franklin, which is, in substance, as follows:

"I remember that I entered a dismissal of the case of Dunkelbarger v. Myers, No. 40147, 211 Iowa 512, on that date, on December 10, 1927. I got a notation from the clerk of the court that the cause was one that should be dismissed. It was the custom at that time for the clerk under the rules, to make up a list of causes at the end of each term where the calendar...