Kiertzner v. Ehrp, 2--56043

• Decision Date: 22 May 1974
• Docket Number: No. 2--56043,2--56043
• Citation: 218 N.W.2d 587
• Parties: Arlo KIERTZNER, Appellee, v. Ronald EHRP and Marion Ehrp, Appellants.
• Court: Iowa Supreme Court

Page 587

218 N.W.2d 587

Arlo KIERTZNER, Appellee, v. Ronald EHRP and Marion Ehrp, Appellants.

No. 2--56043.

Supreme Court of Iowa.

May 22, 1974.

Mack, Hansen & Gadd, Storm Lake, for appellants.

W. B. Perry, Storm Lake, and O'Brien, Galvin & O'Brien, Sioux City, for appellee.

Heard by MOORE, C.J., and LeGRAND, REES, UHLENHOPP and McCORMICK, JJ.

REES, Justice.

This is a permissive interlocutory appeal involving the interpretation of rule 215.1, Rules of Civil Procedure. The appeal is taken from an order of the trial court reinstating the case after a purported dismissal under the above cited rule.

The accident which provides the basis for the action occurred February 6, 1963 and plaintiff's petition was filed on December 30, 1964. Plaintiff was initially represented by Attorneys Smith and Rosene of Sioux City. An answer was filed on January 18, 1965, and defendant conducted discovery proceedings from February 1, 1965 to March 16, 1965.

An amended and substituted petition was filed by plaintiff on November 30, 1965, which was answered by defendants on December 9, 1965. Apparently a preliminary notice of dismissal under rule 215.1, R.C.P. was forwarded to counsel for all parties in 1966, and a mutual application of the parties for continuance to avoid dismissal under the rule resulted in an order on September 18, 1966, taking the case out of the application of the rule.

On August 22, 1967 the clerk of the district court of Sac County mailed a standard rule 215.1 notice to Attorneys Smith and Rosene of Sioux City, and Mack, Mack and Hansen of Storm Lake. However, it appears that the application resulting in the September 18, 1966 order was signed by Attorney William B. Perry of Storm Lake representing the plaintiff. Obviously, the 1967 notice was not timely, and did not result in a dismissal. The record does not indicate any notice of dismissal under the rule in 1968.

The clerk of the Sac County court testified at the hearing which resulted in the order appealed from here that on July 11, 1969, a notice under rule 215.1 was forwarded to counsel in the case, although she further testified she had no personal independent recollection of mailing the 1969 notice to Attorney Perry who then represented plaintiff. She further testified she had mailed a copy of the notice to Attorneys Johannsen, Mohr and Clemens of Sioux City. Although there was no indication the latter firm represented any party to a litigation, the clerk testified the notice was sent to the latter firm due to the fact they had inquired by letter addressed to the clerk about the status of the case. At no time had the attorneys who represented plaintiff initially withdrawn their representation of the plaintiff by any writing filed in the office of the clerk.

On December 23, 1969 the calendar sheet in the case which bore a stamp dated December 23, 1969 and which provided, 'Dismissal without prejudice for want of prosecution and judgment is hereby entered against Plaintiff for $71.50 costs.' was handed to then Judge David Harris, who signed the calendar sheet order. While it is not pertinent to our determination of this appeal, it is to be noted that the order of December 23, 1969 was some eight days prior to the end of the calendar year and the terminal date of the then current term of court in Sac County.

Copies of the calendar entry of December 23 were mailed by the clerk of the district court to Attorney Perry of Storm Lake, to Mack, Mack and Hansen of Storm Lake, attorneys for the defendant, and to the Sioux City law firm above mentioned. Such mailing was accomplished on January 9, 1970 and advised all counsel of the entry of the order of dismissal by Judge Harris.

An application signed by Attorney Perry to set aside the order of dismissal and for reinstatement of the cause and assignment for trial was filed in the office of the clerk of Sac County. There is some confusion as to the exact date of filing, but it occurred either on June 26 or June 29, 1970. In said application, which was verified by Attorney Perry, it was represented that Mr. Perry had not received a copy of either the notice by the clerk which was required to be mailed or delivered by the clerk prior to August 15, 1969, or a copy of the order of dismissal dated December 23, 1969. In the application he asserted that due notice to counsel under R.C.P. 215.1 was mandatory and an antecedent requirement to dismissal of the cause; that the purported dismissal arose out of oversight, mistake or other reasonable cause within the contemplation of R.C.P. 215.1, and prayed that the court set aside the dismissal of the cause, reinstate the same and assign the cause for trial.

To said application to set aside the dismissal, defendants filed a special appearance and resistance. Hearing was had on July 13, 1970. The only witness appearing was the clerk of the Sac County court called by defendant.

For some inexplicable reason, over two and a half years elapsed between the date of the hearing and the filing of the court's...