Kern v. Woodbury Cnty.

Decision Date06 June 1944
Docket NumberNo. 46475.,46475.
Citation14 N.W.2d 687,234 Iowa 1321
PartiesKERN v. WOODBURY COUNTY et al.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Woodbury County; D. C. Browning, Judge.

A defendant petitioned for new trial, under Rule 252 of Rules of Civil Procedure. Plaintiff appeared specially. The court sustained the special appearance. Opinion states the facts. Said defendant appeals.

Affirmed.

F. W. Lohr, of Sioux City, for appellant.

Shull & Marshall and R. B. Pike, all of Sioux City, for appellees.

OLIVER, Justice.

This was an action in equity to quiet title to real estate. March 31, 1942, the trial court rendered default against defendant, William F. Lohr, appellant herein, and decree quieting title in plaintiff. April 3, 1942, the trial court set aside the default decree. April 6, 1942, the trial court set aside the order of April 3, 1942, and reinstated the decree of March 31, 1942. Thereafter, defendant, Lohr, appealed to this court. The decision on appeal, Kern v. Sanborn, Iowa, 7 N.W.2d 801, affirmed the decree of the trial court, and, in accordance therewith, procedendo issued from this court May 9, 1943.

July 29, 1943, counsel for defendant, Lohr, without notice to or the knowledge of plaintiff or his attorneys, presented to the trial court a prepared entry, entitled “Final Judgment and Decree”, which recited the affirmance by this court of the prior decree of the trial court, and (in substantially the language of the original decree) decreed that plaintiff's title to said real estate be quieted. Thereupon the trial court signed said decree and the same was entered of record.

August 9, 1943, defendant, Lohr, filed, in said original action, a petition to vacate the judgment of March 31, 1942, and the judgment of July 29, 1943, and for new trial which asserted (a) unavoidable casualty preventing him from defending, (b) irregularity and fraud in obtaining the default decree quieting title, (c) irregularity in the entry of the order of April 6, 1942. The grounds relied upon were among those covered by Rule 252 of the Rules of Civil Procedure. Original notice of said petition was served upon plaintiff.

In response thereto plaintiff appeared specially and attacked the jurisdiction of the court. After a hearing, the trial court sustained the special appearance. Defendant, Lohr, appeals.

Rule 253 provides that a petition for relief under Rule 252 must be filed and original notice served within one year after the rendition of the judgment or order involved.

Appellant asserts the special appearance did not state, as a ground thereof, that his petition for new trial was not timely. Although the statements on this point were intermingled with other allegations of the special appearance, we think them sufficient to raise this issue.

Appellant's petition for new trial was not made within one year after the rendition of the judgment and orders of March and April, 1942. However, it was within one year from the date of the rendition of the so-called “Final Judgment and Decree”,in July, 1943, after the original decree had been affirmed by this court.

In his special appearance appellee pleaded appellant procured the ex parte entry of the decree after affirmance for the sole purpose of securing an opportunity of making application for new trial under the rules and statutes of Iowa. Appellee asserts that after affirmance of the decree the trial court was without jurisdiction to render a new judgment and that the decree procured by appellant was a nullity and could not extend the time for petitioning for new trial.

The decision of this court in Kern v. Sanborn, supra, merely affirmed the original decree of the trial court. No judgment was entered in the supreme court. Nor was the case remanded to the trial court. The Procedendo gave notice that the decision was affirmed and stated that the trial court should proceed as if no appeal had been taken. In effect, the affirmance was no more...

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4 cases
  • Franzen v. Deere and Co.
    • United States
    • Iowa Supreme Court
    • July 22, 1987
    ...does not have the authority to revisit and decide differently issues already concluded by that judgment. See Kern v. Woodbury County, 234 Iowa 1321, 1323, 14 N.W.2d 687, 688 (1944) (after affirmance of final judgment district court has inherent power to enforce judgment but not to render a ......
  • Claeys v. Moldenschardt
    • United States
    • Iowa Supreme Court
    • February 7, 1967
    ...where the basis for relief asserted is that the court acted without or in excess of its jurisdiction. See Kern v. Woodbury County, 234 Iowa 1321, 1324, 14 N.W.2d 687. To hold otherwise would be contrary to the terms, intent and meaning of the rule. It would also lead to needless confusion a......
  • Marriage of Hoffman, In re
    • United States
    • Iowa Court of Appeals
    • February 25, 1994
    ...the issues concluded by that judgment. See Franzen v. Deere & Co., 409 N.W.2d 672, 674 (Iowa 1987); Kern v. Woodbury County, 234 Iowa 1321, 1323, 14 N.W.2d 687, 688 (1944). We agree with Julie that the district court had jurisdiction to enforce the order of this court. The trial court had j......
  • Jersild v. Sarcone
    • United States
    • Iowa Supreme Court
    • December 10, 1968
    ...Dunton v. McCook, 120 Iowa 444, 447, 94 N.W. 942, 944; Hogle v. Smith, 136 Iowa 32, 36, 113 N.W. 556, 558; Kern v. Woodbury County, 234 Iowa 1321, 1323, 14 N.W.2d 687, 688; Florke v. Florke, 241 Iowa 867, 869, 43 N.W.2d 670, 671; Dawson v. Laufersweiler, 242 Iowa 757, 759, 48 N.W.2d In Dunt......

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