Handy v. Handy, No. 49681

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LARSON; THOMPSON
• Citation: 250 Iowa 879,96 N.W.2d 922
• Parties: Millard HANDY, Appellant, v. Lenore HANDY, Appellee.
• Docket Number: No. 49681
• Decision Date: 09 June 1959

Page 922

96 N.W.2d 922 250 Iowa 879 Millard HANDY, Appellant,
v.
Lenore HANDY, Appellee. No. 49681. Supreme Court of Iowa. June 9, 1959.

Page 923

Life & Davis, Oskaloosa, for appellant.

Richard Schlegel, Ottumwa, for appellee.

LARSON, Justice.

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

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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 [250 Iowa 881] 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.

[250 Iowa 882] 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:

'Evidence to sustain or resist a motion may be by affidavit or in any other form to which the parties agree or the court directs. The court may require any affiant to appear for cross-examination.'

Apparently here the parties contemplated that the court take into consideration its knowledge of all the facts and circumstances surrounding this matter. However, we

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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,...