Julian v. City of Cedar Rapids

• Decision Date: 22 November 1978
• Docket Number: No. 61571,61571
• Parties: Patricia Ann JULIAN, Appellee, v. CITY OF CEDAR RAPIDS, Iowa, and Donald Potter, Appellants.
• Court: Iowa Supreme Court

Page 707

271 N.W.2d 707

Patricia Ann JULIAN, Appellee, v. CITY OF CEDAR RAPIDS, Iowa, and Donald Potter, Appellants.

No. 61571.

Supreme Court of Iowa.

Nov. 22, 1978.

David F. McGuire, Cedar Rapids City Atty., and Benjamin W. Blackstock and Lynda E. Thomsen, Cedar Rapids Asst. City Attys., for appellants.

R. M. Fassler, Cedar Rapids, for appellee.

Considered by REES, P. J., and UHLENHOPP, HARRIS, ALLBEE and LARSON, JJ.

UHLENHOPP, Justice.

This appeal involves the propriety of a new-trial grant to plaintiff Patricia Ann Julian in a damage action for an alleged false arrest without a warrant.

The parties tried the action to a jury. The trial court instructed the jury that Julian had the burden to prove, as one element, that her detention or restraint was unlawful. The jury found for defendants City of Cedar Rapids and Officer Donald Potter, and the verdict was filed on November 10, 1977.

On November 18, 1977, Julian filed a motion for new trial which did not include the burden of proof issue. On December 13, 1977, Julian filed an amendment to her new-trial motion, asserting that the burden of proof was on defendants to justify the officer's action since he acted without a warrant and that the court erroneously placed the burden of proof on Julian, citing Fox v. McCurnin, 205 Iowa 752, 218 N.W. 499.

The trial court overruled the original motion for new trial but sustained the amendment thereto, holding that it had erred with respect to the burden of proof. Defendants appealed.

I. The new-trial grant must be reversed for two reasons. First, the amendment to the motion was untimely. The ground sustained regarding burden of proof was asserted only in the amendment, which was filed 33 days after the verdict. Rule 244 of the Rules of Civil Procedure authorizes new-trial motions. Rule 247 states:

Motions under rules 243 and 244 and bills of exception under rule 241 must be filed within ten days after the verdict, report or decision is filed, or the jury is discharged, as the case may be, unless the court, for good cause shown and not ex parte, grants an additional time not to exceed thirty days.

Julian had 10 days to file a new-trial motion. Her original motion, filed on the eighth day, did not include the ground in question, and the trial court later overruled that part of the motion. She filed her amendment containing the ground in question 33 days after the verdict, which was too late. A late-filed amendment to a new-trial motion cannot be considered unless the ground asserted is germane to a ground in the original timely motion. In re Estate of Dvorak, 213 Iowa 250, 236 N.W. 66.

The burden of proof ground was a new one not asserted in the original motion. The case falls within Dutton v. Seevers, 89 Iowa 302, 303-304, 305-306, 56 N.W. 398, 399, 400.

In Dutton the original new-trial motion contained this ground:

"Third. The court erred in its instructions given to the jury numbered one to eight, inclusive, and in giving each of said instructions, and every part thereof."

By amendment after the time for filing had expired, the defendant Seevers asserted that the instructions erroneously placed the burden of proof on him. This court stated:

The ground stated in the original motion, to which it is claimed the amendment is germane, is that the court erred in its instructions given. It can not be reasonably claimed that the error as assigned therein in any wise relates to a failure of the court to instruct upon some matter not mentioned in the instructions as given. The complaint in the amendment is that the court failed to instruct touching the burden of proof. That is clearly new matter, in no way related to the ground stated in the original motion. The amendment, so far as it related to a failure to instruct as to the burden of proof, was in legal contemplation a new motion, containing a ground for a new trial not germane to those stated in the original motion, and hence the court should not have permitted it to be filed, and, if filed, it should not have been considered.

The burden of proof issue before us was a new ground, belatedly filed, and should not have been considered.

II. The new-trial grant must also be reversed because Julian did not at trial except to the instructions for misplacement of the burden of proof, yet the trial court grounded the...