General Mills, Inc. v. Prall, 48113

• Decision Date: 13 January 1953
• Docket Number: No. 48113,48113
• Citation: 56 N.W.2d 596,244 Iowa 218
• Parties: GENERAL MILLS, Inc. et al. v. PRALL, Judge, Fifth Judicial District of Iowa.
• Court: Iowa Supreme Court

Page 596

56 N.W.2d 596

244 Iowa 218

GENERAL MILLS, Inc. et al. v. PRALL, Judge, Fifth Judicial District of Iowa.

No. 48113.

Supreme Court of Iowa.

Jan. 13, 1953.

Hallagan & Lucier, of Des Moines, for petitioner General mills.

Charles D. Van Werden, of Winterest, for petitioner Vincent Q. Shocklee.

Killmar & Reynoldson, of Osceola, and Daniel J. Gallery, of Winterest, for respondent.

SMITH, Justice.

On December 12, 1950, a jury returned a verdict of $19,000 in favor of Ruby J. Booth, administratrix, against petitioners herein, for the death of her intestate, caused by the reckless operation of a car in which he was a guest.

Thereupon respondent, as presiding judge, wrote in his calendar: 'Jury returns into court with a verdict of $19,000 which is delivered to the court for filing and recording as provided by law and the jury is discharged.'

As of the same date the clerk spread the verdict and the calendar entry in District Court Record '00,' page 110, entered the judgment in Combination Appearance, Judgment Docket and Fee Book (showing date, amount and costs, and the interest '5%') and also in Lien Index as to both defendants.

On January 11, 1951, another calendar entry was made by the judge and entered by the clerk in District Court Record '00,' page 128, as follows: 'And the judgment heretofore entered by the clerk upon the verdict is hereby ratified, confirmed, and approved.'

Thereafter defendants in that case (petitioners here) appealed to this court and on October 16, 1951, the judgment was affirmed on condition of a remittitur by plaintiff of all in excess of $12,500 and costs. See Booth v. General Mills, Inc., 243 Iowa ----, 49 N.W.2d 561. Rehearing was denied and procedendo issued January 16, 1952. On January 19, plaintiff administratrix filed 'Application for Correction of Judgment Entry' alleging plaintiff was entitled to interest on the verdict from the date of death of decedent, February 12, 1948, and 'that the entries as made were mistakes inadvertently made by the clerk.'

Upon a hearing on said Application, after notice directed to defendants' attorneys and served on one of them, the court overruled a special appearance by defendants, and made a 'nunc pro tunc judgment entry' reciting:

That the original $19,000 'Judgment entry is not complete and does not attempt to state in a formal manner the amount of the judgment, or the date from which interest thereon should run'; that when the case was submitted the court 'did not instruct the jury in regard to interest * * *'; also that 'it was the duty of the Clerk to enter a judgment upon the verdict as provided by law.'

The order also states: 'This being an action to recover damages occasioned by the death of plaintiff's decedent, interest on the verdict was due from the date of death * * *. That, if in fact, the entries on the Clerk's Docket are intended to indicate that interest on the verdict should run only from December 15, 1950, then said entry is in error and does not correctly speak the judgment and interest that should have been rendered upon the verdict of the jury. That such entry is apparent error upon the face of the record and one that can be corrected by computation of interest.'

The order, referring to the decision of this court, states 'plaintiff has filed a Remittitur' in accordance therewith; and then by appropriate language further provides that plaintiff 'is hereby awarded judgment' in the sum of $12,500 'with interest thereon * * * from February 12, 1948' (the date of the death of plaintiff's decedent).

Petitioners (defendants in the original action) have sued out this writ of certiorari, questioning the legality of that nunc pro tunc order. They state six 'propositions relied on to sustain the writ.' The first five allege noncompliance with, and limitation by lapse of time under, Rule 253, R.C.P., 58 I.C.A.; the sixth urges that the alleged mistake was judicial and not merely clerical. Respondent contends: 1. Upon return of verdict in the original action plaintiff was entitled to interest on it from date of death; 2. that it should have been so entered as a ministerial act; and 3. the court (respondent here) had inherent power to correct the record nunc pro tunc.

It will be observed respondent's brief ignores petitioners' five contentions which assume the proceedings for correction of the judgment entry were instituted under Rules 252 and 253, R.C.P.

I. It seems to be settled in this state that interest may be allowed on unliquidated claims wherever it appears the damage was complete at a particular time; also that it is right to instruct the jury to that effect, and that unless it can be said the jury allowed interest in fixing the amount of its verdict the court as well as the jury could add it. Collins v. Gleason Coal Co., 140 Iowa 114, 124, 115 N.W. 497, 118 N.W. 36, 18 L.R.A.,N.S., 736; Bridenstine v. Iowa City Electric Ry. Co., 181 Iowa 1124, 1135, 1137, 165 N.W. 435.

Petitioners here do not question the abstract proposition but claim it was illegally invoked and applied here.

II. Rule 252, R.C.P. provides that 'Upon timely petition and notice under rule 253 the court may correct * * * a final judgment' on the ground of 'Mistake, neglect or omission of the clerk'. (Italics supplied.) Rule 253(a) requires that such petition must be filed within one year after rendition of the judgment; subsection (b) requires service of 'an original notice in the manner provided in division III of these rules' (division III relates to 'Commencement of Actions'); and subsection (c) requires assignment of the petition for trial 'not less than twenty days after notice is served.'

If the nunc pro tunc order was intended to be made pursuant to the authority of these rules clearly it cannot be upheld. The petition for correction of the judgment entry was not filed within one year after rendition of the judgment and the procedure failed in other respects to comply with that prescribed in Rule 253. The special appearance of defendants should have been sustained. Kern v. Woodbury County, 234 Iowa 1321, 1324, 14 N.W.2d 687; Davis v. Wilson, 239 Iowa 337, 30 N.W.2d 487.

III. But we do not deem the error was clerical as the language of the order assumes. The clerk, in entering judgment on the verdict, could not make a determination in a case of this kind that interest from date of death to date of rendition of verdict should be added. That would be a decision for the presiding judge or jury to make, dependent on the evidence and the instructions. The question of the right to such interest on unliquidated claims is one that has bothered courts and lawyers. Courts are not unanimous in answering it. 25 C.J.S., Death, § 109; Bridenstine v. Iowa City Electric Ry. Co., supra, 181 Iowa, at page 1136, 165 N.W. at pages 439, 440; 16 Am.Jur., Death, § 384. In fact the rule in our state has been said to be contrary to the general rule. Olson v. Shuler, 203 Iowa 518, 521, 210 N.W. 453.

In Black v. Minneapolis & St. L. R. Co., 122 Iowa 32, 37, 96 N.W. 984, 986, it is said: 'But it is well settled that, in estimating even unliquidated damages, the jury may take into account interest on the sum found necessary to compensate the plaintiff for the injury suffered at the time of the loss, on the theory that such interest is a part of his damage. Richmond v. Dubuque & S. C. R. Co., 33 Iowa 422, 502; Frazer v. Bigelow Carpet Co., 141 Mass. 126, 4 N.E. 620; Richards v. Citizens' Nat[ural] Gas Co., 130 Pa. 37, 18 A. 600; Lincoln v. Claflin, 7 Wall. 132, 139, 19 L.Ed. 106. As the verdict of the jury was with reference to the money loss sustained by the plaintiff at the time of the fire, they were properly told that they might, as an element of damage, include interest on the amount of such loss.'

In Hollingsworth v. Des Moines & St. L. Ry. Co., 63 Iowa 443, 447, 19 N.W. 325, we held that if the court in express terms had not told the jury whether plaintiffs were entitled to interest or not, it was not error for the court to add it later. In that case the court acted prior to appeal. It required a determination that the jury had not included such interest in the amount of its verdict--a judicial decision. The respondent here might well have submitted it to the jury; or not having done that might, upon a proper finding, have directed the clerk to compute and add the interest to the verdict.

IV. It is argued on behalf of respondent that in fact no judgment at all was entered upon the verdict until the nunc pro tunc judgment entry was signed. That is equivalent to saying the time and energy of counsel and cou...