Keller v. Harrison

• Citation: 151 Iowa 320,131 N.W. 53
• Parties: KELLER ET AL. v. HARRISON ET AL.
• Decision Date: 12 May 1911
• Court: United States State Supreme Court of Iowa

151 Iowa 320

131 N.W. 53

KELLER ET AL.

v.HARRISON ET AL.

Supreme Court of Iowa.

May 12, 1911.

Supplemental opinion. Petitions for rehearing granted in part and reversed in part, and judgments modified and affirmed.

For former opinions, see 128 N. W. 851;129 N. W. 57.

Weaver, J., dissenting.

D. G. McCarty and T. W. Harrison, for appellants.

E. A. & W. H. Morling, for appellees.

LADD, J.

[1] After appeal had been perfected in the above-entitled case, another appeal was taken from an order taxing certain costs and expenses to defendant Harrison, upon sustaining a motion for continuance. These appeals were prosecuted and submitted separately to this court, and separate opinions filed (128 N. W. 851;129 N. W. 57). Petitions for rehearing have been submitted, and that assailing the above opinion is overruled, and the other petition is sustained, not owing to any change in the views expressed by the majority or by those dissenting, but for the reason that both appeals are in the same cause, and, though presented in separate abstracts and arguments, should have been considered and disposed of as merely bringing distinct portions of the same record to the attention of this court. Had the abstract in the second been incorporated in the first appeal, this could not well be questioned. That the two abstracts were bound separately ought to make no difference. We are the more inclined to this view because of the differences of opinion as to whether an interlocutory order taxing costs is appealable; four justices being of the opinion that it is not appealable, and the other two that it is. It ought not to be said, then, that there was not some ground for the course pursued by counsel for appellant in prosecuting separate appeals, when all errors in the record might have been reviewed on a single appeal. As on the appeal from the final judgment, every exception saved might have been presented, we have concluded that the court on its own motion should have consolidated the appeals which were pending and submitted at the same time, and reviewed the errors assigned and argued as though all the abstracts and arguments had been filed in the appeal from the final judgment. This is saying no more than that the printing of portions of the record in different abstracts, though irregular, will not deprive a party of having the errors assigned and argued in either reviewed.

[2] 2. The cause had been noticed for trial at the December, 1908, term of the district court, and, after motion for change of forum had been overruled, defendants applied for a continuance, on the ground that one of them, Harrison, had suddenly become too ill to proceed with the trial. Objections thereto were interposed, but on full hearing a continuance was ordered, on condition that said defendant pay the taxable costs of the term, amounting to $19.50, the expenses of plaintiff in attending court in the sum of $144, and $25 for plaintiff's attorney as compensation for resisting the motion for continuance. A judgment was entered against said Harrison for the aggregate amount of these sums. The record does not show acceptance or acquiescence in the condition on his part. He excepted to the ruling, and when the statute defines the terms on which a continuance may be granted acquiescence in the order postponing the trial does not estop the moving party from challenging the legality of the terms imposed. Our statute, in designating the terms on which continuances may be ordered, by fair implication excludes authority to impose others, and if others are named as conditions upon which the order is entered these are in excess of authority, and may be challenged as any other like rulings. The trial ought not to be postponed, unless the party applying is entitled thereto, and that he acquiesces in that portion of the order rightfully entered ought not to interfere with taking exception to another portion, which the court erroneously has included. There are some decisions seemingly to the contrary, but which will be found on examination to proceed on the theory that, as the court might impose terms within its discretion, the party on whom these have been imposed may not, after accepting them, assail the order as an abuse of discretion. Thus Brown v. Warren, 17 Nev. 417, 30 Pac. 1078, follows the decisions of New York, where the statute expressly authorizes the court, as a condition of postponing trial, to impose reasonable terms, and it is said that if the mover does not like the terms imposed he should not take the rule. The Alabama cases proceed on the same theory. Rhea v. Tucker, 56 Ala. 450. In this state the terms on which a continuance may be granted are defined, and as any others are in excess of the court's authority acquiescence in the order is not to be presumed to extend beyond its lawful conditions. The cause was tried at a subsequent term of court, and a judgment entered on the merits, as appears in the foregoing petition. Was it error to tax the costs, expenses, and attorney's fees as above stated?

[3] The only provisions for the taxation for costs upon the continuation of an action on application are found in sections 3662 and 3671 of the Code. The former provides that: “When time is asked for making application for continuance, the cause shall not lose its place on the calendar, or it may be continued at the option of the other party, and at the cost of the party applying therefor, for which cost judgment may at once be entered by the clerk, unless the contrary be agreed between the parties or ordered by the court.” The latter reads: “Every continuance granted shall be at the cost of the party applying therefor unless otherwise ordered by the court.”

It will be noted that in neither section is anything but the costs of the action referred to, and we think by costs is meant the taxable costs in the case. At the common law, costs were not recoverable eo nomine. If the plaintiff failed to recover, he was punished by amercement for false clamor, and if the judgment was entered against defenda...