Insel v. Kennedy

• Decision Date: 11 April 1903
• Parties: W. F. INSELL, Appellant, v. LAWRENCE KENNEDY, Appellee
• Court: Iowa Supreme Court

94 N.W. 456

120 Iowa 234

W. F. INSELL, Appellant, v. LAWRENCE KENNEDY, Appellee

Supreme Court of Iowa, Des Moines

April 11, 1903

SATURDAY APRIL 11, 1903.

Appeal from Wright District Court.--HON. J. R. WHITAKER, Judge.

THE opinion states the case.

Reversed.

Porter Donly and Filkins & Schaffter for appellant.

McGrath & Bryan for appellee.

OPINION

WEAVER, J.

Plaintiff began action before a justice of the peace February 15, 1901 to recover from defendant the sum of $ 8.36 for board, and sued out a writ of attachment on the allegation that defendant was a nonresident of the state. Under this writ the Chicago & Northwestern Railway Company was garnished, and answered that it was indebted to defendant in the sum of $ 56.65. On March 22, 1901, defendant appeared, denying the plaintiffs claim, and setting up a counterclaim on the attachment bond; alleging that the writ was sued out wrongfully and maliciously, and claiming damages for time lost in attending trial, $ 12, attorney's fees, $ 15, and exemplary damages in the further sum of $ 68. He also pleaded a further counterclaim of $ 5 for money loaned to plaintiff in the year 1892. There was trial to a jury, and on March 27, 1901, a verdict and judgment were found for plaintiff for $ 6.36. Defendant on the following day appealed to the district court, at the next term of which there was trial to a jury, resulting in a verdict for the defendant for $ 1.44. From judgment on this verdict, plaintiff appeals.

I. The first error assigned is upon the ruling of the trial court denying plaintiff's motion for a continuance. Ordinarily a ruling upon a motion for continuance will not be held reversible error, save where there is a manifest abuse of the discretion reposed in the trial court. It is claimed, however, that the continuance here demanded was a matter of statutory right. Code section 4560, provides that, where an appeal is not taken on the day judgment is rendered by the justice, a written notice thereof must be served on the opposite party at least ten days before the next term of the district court, and, if such notice be not served, the action will be continued on motion of appellee. No notice was served in this case. The transcript was transmitted by the justice to the district court in due time, but was not entered by the clerk upon the appearance docket. The next term of the district court commenced April 22, 1901, and on April 26th the case was assigned for trial, but there is a dispute whether plaintiff or his counsel had notice of the order. On May 2d, before the case was called for trial, plaintiff filed a motion setting up the foregoing facts, and asking a continuance, which was denied after a showing in resistence by the defendant. If the plaintiff was present, in person or by counsel, when the case was assigned for trial, and made no objection thereto, he would properly be held to have waived his right to demand a continuance; and, as there was a dispute on this point, we are not inclined to interfere with the order of the trial court overruling the motion.

We think it proper to say, however, that, there having been no notice of the appeal, we do not think the statute (Code, section 4560) required the plaintiff to file any formal motion for continuance, or to make any appearance whatever in order to prevent the case being brought on for trial at the first term. In other words, without a notice the cause properly stands for continuance by operation of law, unless there be a waiver or voluntary appearance. McCormick v. Bishop, 3 Greene 99; McQuillan v. Windsor, 6 Iowa 396; Bond v. Davis, 37 Iowa 163.

II. The defendant was a witness in his own behalf, and after testifying that h...