Eggermont v. Serv. Life Ins. Co. of Omaha, Neb.

• Decision Date: 05 March 1946
• Docket Number: No. 46877.,46877.
• Citation: 21 N.W.2d 761,237 Iowa 301
• Parties: EGGERMONT v. SERVICE LIFE INS. CO. OF OMAHA, NEB.
• Court: Iowa Supreme Court

237 Iowa 301

21 N.W.2d 761

EGGERMONT

v.SERVICE LIFE INS. CO. OF OMAHA, NEB.

No. 46877.

Supreme Court of Iowa.

March 5, 1946.

Appeal from Municipal Court of Des Moines; Don G. Allen, Judge.

Application to grant an appeal from an interlocutory ruling, met by objection that the filing thereof was not timely.

Application denied.

Herbert H. Hauge and Cosson, Stevens & Cosson, all of Des Moines, for appellant.

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

PER CURIAM.

On Nov. 17, 1945, plaintiff filed a petition in the Municipal Court of the City of Des Moines to recover $90.37 on a policy of insurance issued by the defendant company. Defendant filed a special appearance and motion to quash service of original notice upon it, which asserted that it is not authorized to do business at this time in the State of Iowa and is not so engaged, that the Insurance Commissioner is no longer authorized to act as process agent for defendant, and the service of original notice on him did not confer jurisdiction over the defendant. Resistance was filed by plaintiff. Hearing was had and counsel stipulated the pertinent facts. On Jan. 10, 1946, the court overruled the special appearance. On Jan. 25, 1946, the trial court certified, pursuant to Rule 333 of the Rules of Civil Procedure, that the question presented was such that an appeal to this court should be granted notwithstanding the fact that the amount in controversy is less than $300 as shown by the pleadings herein. On Feb. 13, 1946, appellant made application to this court, pursuant to Rule 332 of the Rules of Civil Procedure, to grant an appeal in advance of final judgment. Appellee's resistance to such application states, among other things, that, ‘the appeal was not taken within 30 days after the order of Jan. 10, 1946,’ and is not timely.

I. We are satisfied that the application to grant the appeal herein must be denied because not made within thirty days from the date of the ruling complained of.

Rule 335 of the Rules of Civil Procedure, as reported to the 50th Gen. Assembly, p. 352, and as amended by our report to the 51st Gen. Assembly, p. 341, provides as follows: ‘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; provided however, that, where an application to the Supreme Court or any Justice thereof to grant an appeal in advance of final judgment under Rule 332 is made within thirty (30) days from the date of such ruling or decision, the Supreme Court or any Justice thereof may extend the time for filing the notice of appeal in the event the appeal is granted and the appeal, in such event, may be...