Erickson v. Barber

• Decision Date: 10 October 1891
• Citation: 49 N.W. 838,83 Iowa 367
• Parties: ERICKSON v. BARBER ET AL.
• Court: Iowa Supreme Court

83 Iowa 367

49 N.W. 838

ERICKSON

v.BARBER ET AL.

Supreme Court of Iowa.

Oct. 10, 1891.

Appeal from district court, Hancock county; G. W. RUDDICK, Judge.

Action to recover damages on account of personal injuries sustained by plaintiff, and alleged to have been caused by the negligence of defendants. There was a trial by jury, and a judgment in favor of plaintiff. The defendants appeal. Affirmed.W. E. Bradford, for appellants.

Ripley & Osborne and Wesley Aldridge, for appellee.

ROBINSON, J.

The defendants, at the time of the transactions in question, were engaged at Britt, as liverymen, in carrying passengers for hire. In May, 1889, plaintiff engaged defendants to convey her from Britt to a place in the country several miles distant. An open, two-seated buggy was selected. Plaintiff occupied a part of the rear seat, one of the defendants acting as driver, and the journey was commenced. Before it was completed, in crossing a small culvert, plaintiff was thrown from the buggy, and received the injuries of which she complains. She alleges that defendants were negligent in not providing a safe vehicle, in that the seat she occupied was not properly fastened, and in not driving the team properly. The answer contains a general denial, and alleges that plaintiff contributed to the injuries in question by her own negligence. The jury returned a verdict in favor of plaintiff for $800. On the hearing of a motion for a new trial, the district court ordered that it be sustained, unless plaintiff should consent to a reduction of the amount of her recovery to $500. Plaintiff thereupon consented to such reduction, and judgment was then entered in her favor for $500 and costs.

1. The petition in this case was filed in September, 1889. At the October term of court of that year the defendant appeared, and filed motions to strike from the petition and for a more specific statement. The motions were sustained, and an amendment to the petition was filed. The cause was then continued, with leave to defendants to answer by the first day of the next December term. The answer was filed in vacation, more than 10 days before the December term. Rule 2 of the rules of practice adopted by the convention of district judges held pursuant to the requirements of section 11, c. 134, Acts 21st Gen. Assem., is as follows: “In any case once continued, where an answer is on file, either party desiring to bring such cause on for trial at any time shall, at least ten days before such term, file with the clerk a notice of trial, and no such cause shall stand for trial unless a trial notice be so filed, except by consent of parties: provided, that, after the commencement of the term, the court may, in its discretion, by order entered of record, permit notices of trial to be entered in the same manner, ten days prior to such date as the court may name in such order. Such order may be general, and not entered of record in each particular case; and the clerk, in preparing the court calendars, shall note thereon, opposite the title of each cause noticed for trial, ‘For trial,’ which words shall also appear on the printed calendar. This rule shall not apply to appearance or criminal cases, nor to proceedings in probate.” In this case no trial notice was ever filed, and for that reason defendants objected to going to trial at the December term. The objection was overruled, and defendants were compelled to go to trial at that term. They now complain of that ruling, and insist that the rule quoted applies to all continued cases in which an answer is on file 10 days before the next term of court, and that since the answer in this case was on file November 20, 1889, and the first day of the next term of court was on the third day of the next month, they were entitled to a trial notice, and could not be compelled lawfully to go to trial without it. The rule does not apply to any case at the term at which the defendant is first required to appear, yet, under the rules of practice in force in this state, the parties to all excepting some equitable actions are entitled to have the issues settled and the cause tried at the appearance term, unless grounds for a continuance exist. Code, §§ 2635, 2636, 2691, 2744, 2745. When a case has been continued before the issues are settled, there is no more reason for requiring a trial notice than there is to require such a notice before the appearance term It is a matter of common knowledge that many cases are continued from term to term after the issues are settled, the parties in interest not caring to have them tried. In such a case, both parties having consented to a continuance, it is just that either one who wishes a trial shall give notice of that fact. We think the rule under consideration was adopted largely on account of cases of that kind, although its language is so broad as to include others. In a very large proportion, and in probably a...