Johnson v. Linquist, 54401

• Court: United States State Supreme Court of Iowa
• Writing for the Court: REES; LARSON; BECKER; LeGRAND
• Citation: 184 N.W.2d 681
• Parties: Wendell JOHNSON, d/b/a Johnson Construction Company, Appellant, v. Jack E. LINQUIST and Darlene M. Linquist, Appellees.
• Docket Number: No. 54401,54401
• Decision Date: 11 March 1971

Page 681

184 N.W.2d 681 Wendell JOHNSON, d/b/a Johnson Construction Company, Appellant,
v.
Jack E. LINQUIST and Darlene M. Linquist, Appellees. No. 54401. Supreme Court of Iowa. March 11, 1971.

Getscher & Getscher and John S. Redd, Hamburg, for appellant.

Clovis, Falk & Norris, Shenandoah, for appellees.

REES, Justice.

This is an appeal from the district court's order dismissing plaintiff's cause of action and from an order overruling plaintiff's motion to reinstate under Rule 215.1, Rules of Civil Procedure. We reverse and remand.

This case originated as a law action filed by plaintiff to recover for the value of a

Page 682

Butler Steel Building constructed on defendants' farm. Since the case comes to this court on a procedural dispute, it is necessary to set out in chronological order the various events leading up to this appeal.

The plaintiff alleged the cause of action arose on or about December 1, 1963, and his petition was filed on May 22, 1967. An answer to the petition was filed July 25, 1967. On August 12, 1968 the clerk of the district court of Page County, pursuant to the requirements of rule 215.1, R.C.P., filed a Try or Dismiss Notice with copies to the attorneys of record. On December 2, 1968, an order of court was entered granting a continuance of the case and setting a trial date certain as February 11, 1969. No trial was had on February 11, 1969 due to unavailability of a judge, but the court on that date announced a later date for trial of the case would be fixed. On May 13, 1969 the defendant filed a motion to dismiss the cause of action under rule 215.1. An order dismissing plaintiff's cause of action without prejudice was entered by the district court on May 13, 1969. The plaintiff did not receive any notice of the filing of defendants' motion to dismiss and later filed, on May 20, 1969, a motion to reopen the case. Plaintiff further filed an application to reinstate the action under the amendment to rule 215.1, on June 6, 1969. The court overruled both the motion to reopen and the motion to reinstate the action. Plaintiff then filed a motion for a new trial, which was also overruled.

I. The issue in this case is whether the district court exercised its discretion as to reinstatement under the amendment to rule 215.1, R.C.P. Resolution of the issue must involve a determination of whether the district court ruled that it had no discretion as to the dismissal only, or had no discretion as to the application to reinstate.

II. This court has considered the application of rule 215.1 in several cases. Without a proper continuance the dismissal of a case that has been noted for trial or dismissal is mandatory and automatic. Baty v. City of West Des Moines, 259 Iowa 1017, 1023, 147 N.W.2d 204, 208; McKinney v. Hirstine, 257 Iowa 395, 399, 131 N.W.2d 823, 826; Schmidt v. Abbott, 261 Iowa 886, 889, 156 N.W.2d 649, 650.

Rule 215.1 was amended by the Sixty-first General Assembly adding the following:

'The trial court may, in its discretion, and shall upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed. Application for such reinstatement, setting forth the grounds therefor, shall be filed within six months from the date of dismissal.'

This court has not decided any cases involving the reinstatement section of rule 215.1 since the amendment was adopted. Two cases have dealt with rule 215.1 in its present amended form, but neither Baty v. City of West Des Moines,...