Handy v. Handy, 49681
Decision Date | 09 June 1959 |
Docket Number | No. 49681,49681 |
Citation | 250 Iowa 879,96 N.W.2d 922 |
Parties | Millard HANDY, Appellant, v. Lenore HANDY, Appellee. |
Court | Iowa Supreme Court |
Life & Davis, Oskaloosa, for appellant.
Richard Schlegel, Ottumwa, for appellee.
In this appeal the assigned error is that 'The trial court exceeded its area of discretion in sustaining defendant's motion to set aside decree (of divorce) entered September 23, 1957.' Appellant contends no grounds existed or were shown justifying the setting aside of the decree, that the application to set aside the default judgment was based only upon defendant's affidavit, which was insufficient, and that it lacked factual support of a good defense as required by law.
The trial court found that defendant's case was 'a bona fide one', that excusable neglect, mistake, or unavoidable casualty appeared, set the judgment aside, and ordered the case tried on its merits.
The facts are few and simple. Plaintiff filed his petition for divorce September 10, 1954. Defendant filed pleadings, including a cross-petition, and the issues were established. The case was listed in the trial assignment for September 10, 1957. In the meantime defendant's counsel, who had been associated with the Ottumwa, Wapello County, Iowa, firm of Jones, White & Starr, left that firm and established his office and practice at Fairfield, Jefferson County, Iowa. It was possible that notice of the assignment did not reach him. In any event he failed to appear on September 10th and the case was reassigned for September 16, 1957, at 10 A. M. Pursuant to an order of court, Mr. Starr, defendant's counsel, was notified of the date by registered mail, but for some unexplained reason he did not appear. Efforts to reach him at the appointed hour were without success and, after waiting an hour, the court permitted the plaintiff to introduce his evidence. The court then directed the clerk to notify Mr. Starr that 'if no action was taken by defendant by September 23rd' decree would be signed and her counterclaim dismissed. Mr. Starr was so notified. When he did not appear in person or by pleading by the morning of September 23, 1957, the court signed the decree in favor of plaintiff and it was filed in the office of the clerk.
In the afternoon of the same day Mr. Starr did appear and asked the court to vacate the decree on the ground that he still had the rest of the day, or until adjourning time, in which to take appropriate action.
The trial court was greatly disturbed by this request, in view of its entry above referred to, and stated in its order setting aside the decree that, although it had intended that whatever was done must be done 'before or by' the convening of court on September 23rd, it could not say counsel was wrong in assuming that the words 'by September 23rd' gave him all of that day in which to act.
At 3:59 P. M. on September 23rd defendant did file a motion asking that the decree signed that date be set aside as prematurely entered, and requested the court to prescribe and provide notice to plaintiff of the time and place for hearing on the motion. This was done, and on the morning of the hearing, July 1, 1958, defendant filed an affidavit stating that she had a good cause in 'That subsequent to the commencement of said action, this affiant removed herself from the family home by reason of the conditions existing in said home at that time' and that she was away thereafter teaching school She further stated that she had made 'diligent effort to acquire the trial and determination of this matter', and that she was unaware of the assignments made in this case until after the decree was signed; that she had a 'meritorious defense', 'ample grounds' for divorce against plaintiff, and that by reason of unavoidable casualty and misfortune, or excusable neglect on her part, she was deprived of a trial on the merits.
I. Although defendant was not present at the hearing on her motion, her present counsel offered to bring her before the court for examination relative to her allegations of good cause. At the same time the judge suggested, due to his knowledge of the case, that some other judge hear the matter. However, plaintiff's counsel did not wish a continuance, and counsel for both parties expressed a desire that this judge hear and pass upon the motion. Appellant's counsel stated, 'Your Honor will have knowledge of these matters' and 'That is exactly the reason' it was desirable to have this judge hear the motion.
Under Rule 116, R.C.P., 58 I.C.A., when the parties agree, it seems permissible to consider any form of evidence in passing on a motion. Rule 116 provides:
Apparently here the parties contemplated that the court take into consideration its knowledge of all the facts and circumstances surrounding this matter. However, we must point out such evidence is a little hard to review or evaluate in this type of an appeal, which is not de novo. While complete confidence in the trial court is laudable and not misplaced here, we must point out that when such knowledge is a accepted as evidence, the ultimate result is practically a finality of the trial court's determination or ruling on that motion.
Here we are confronted by this unanswerable question. What part did the court's knowledge of the issues, contentions, and testimony in this matter, and of the facts relating to the alleged excusable neglect, misfortune, and unavoidable casualty, play in its decision as to whether good cause as provided in Rule 235, R.C.P., was shown? We must assume it was considered within the scope of that intended by the parties. Regardless of that fact, appellee contends sufficient appears in the record to sustain the trial court's broad discretion, and that it fairly accomplishes the desired result of having matters of this kind decided upon their merits. We must agree.
II. It is plaintiff-appellant's contention that defendant did not carry her burden to show good cause or unavoidable casualty, as required in Rule 236, R.C.P., and did not show sufficient facts to justify the court's finding. Johnson, Lane & Co. v. Nash-Wright Co., 121 Iowa 173, 96 N.W. 760; Andres & Co. v. Schlueter, 140 Iowa 389, 118 N.W. 429. Rule 236 provides:
* * *'
A 'good cause', we said in Svoboda v. Svoboda, 245 Iowa 111, 118, 60 N.W.2d 859, 863, is a sound, effective and truthful reason. 'It is something more than an excuse, a plea, apology, extenuation, or some justification, for the resulting effect.' It is then clear that the facts of each case govern the determination of whether the trial court's action was proper. If the facts related to the court by testimony or affidavit, taken with or without the court's knowledge of the matter, made it clear to the court that the party in good faith intended to appear and defend, but failed to do so because of accident, mistake, or excusable neglect, the trial court would be justified in setting aside the default and judgment, and we will not interfere.
While the requirement of the rule is 'good cause shown', we are not inclined to be more critical of the trial court in considering the facts shown in light of its knowledge than counsel was prior to the hearing. It is true that few facts were related in the affidavit to support the statement by defendant that she has a meritorious defense, but apparently counsel for plaintiff at the hearing did not seriously question that sworn statement, and agreed that the court could consider its knowledge to sustain or deny the motion. Rule 116, R.C.P.
From the pleadings themselves which were before the court, factual statements may be found to support the court's finding that the action was bona fide. In her reply to plaintiff's answer to her cross-petition, defendant states '* * * that she denies that without cause or on her own volition, she sought and obtained employment as a teacher in the public schools of the State of Iowa; that on the contrary, the conduct of the plaintiff was such that he forced her from her home, and that the plaintiff failed to support the defendant, forcing her to support herself * * *.'
The court's duty in this proceeding is to ascertain from the evidence whether any facts existed which, if established on retrial, would prima facie constitute a defense. Johnson, Lane & Co. v. Nash-Wright Co., supra; Miracle v. Lancaster, 46 Iowa 179; Dryden v. Wyllis, 51 Iowa 534, 1 N.W. 703; Worth v. Wetmore, 87...
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