Kutrules v. Suchomel

• Decision Date: 05 April 1966
• Docket Number: No. 51884,51884
• Citation: 141 N.W.2d 593,258 Iowa 1206
• Parties: Vera KUTRULES, Appellant, v. Thomas F. SUCHOMEL, M.D., Defendant-Appellee, and Mearl Reynolds, Executor of the Estate of Effie Frances Reynolds, Deceased, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 593

141 N.W.2d 593

258 Iowa 1206

Vera KUTRULES, Appellant, v. Thomas F. SUCHOMEL, M.D., Defendant-Appellee and Mearl Reynolds, Executor of the Estate of Effie Frances Reynolds, Deceased, Defendant-Appellant.

No. 51884.

Supreme Court of Iowa.

April 5, 1966.

Rehearing Denied May 3 and June 14, 1966.

R. L. Rick, Des Moines, for plaintiff-appellant.

R. B. Wolfe, Mount Vernon, for defendant-appellant Reynolds.

David M. Elderkin, of Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for defendant-appellee Suchomel.

SNELL, Justice.

This submission involves two separate appeals. There is one plaintiff. There are two defendants sued by plaintiff in the same case but brought in by plaintiff at different times.

Plaintiff appeals from the order of the trial court dismissing her case against defendant Suchomel under rule 215.1, Rules of Civil Procedure. Defendant Reynolds, with our permission, appeals from the order of the trial court refusing to dismiss as against him.

The question whether liability if any would be joint, several, derivative or divisible is not before us although it is suggested in argument that the liability of defendant Suchomel would be based on the doctrine of respondeat superior.

On June 20, 1963 plaintiff filed suit against the defendant Thomas F. Suchomel, M.D. alleging a cause of action originating in November of 1961. Plaintiff alleged malpractice on the part of the defendant growing out of actions of Effie Frances Reynolds, an office assistant of Dr. Suchomel.

On December 6, 1963 plaintiff by amendment to her petition made Mearl Reynolds, executor of the Estate of Effie Frances Reynolds, a party defendant and on the same date plaintiff recast her petition.

On February 17, 1964 plaintiff amended her recast petition.

On March 5, 1964 the defendant Suchomel filed answer and on March 9, 1964 defendant Reynolds filed answer.

On August 15, 1964 the case against the defendant Suchomel being more than one year old the clerk of the district court, pursuant to rule 215.1, Rules of Civil Procedure, gave notice to all counsel appearing of record that the case would be for trial and subject to dismissal if not tried at the next term, which was at that time the October 1964 Term.

On October 1, 1964 plaintiff filed a Certificate of Readiness for trial. This certificate included the statement 'Assignment for trial by jury upon timely demand filed is requested.'

On October 20, 1964 and within the October Term plaintiff filed a motion to remove the case from the dismissal list. In addition to stating reasons why the case should not be dismissed plaintiff stated willingness to go to trial during the current term and in the alternative asked that the case be assigned for trial on a specific date. Counsel for each defendant received copy of the motion pursuant to rule 82, Rules of Civil Procedure.

The record before us does not indicate what, if any oral argument followed, but we assume the motion was submitted as required by rule 117, Rules of Civil Procedure. On November 24, 1964 the court sustained plaintiff's motion to remove the cause from the dismissal list and continued the case to the January 1965 Term of court.

On March 18, 1965 plaintiff filed another Certificate of Readiness. This was within the January Term.

The January 1965 Term of court ended with the convening of the April Term on April 5, 1965.

Just why the case was not reached for trial during the January Term does not appear in the record, but clearly there was no abandonment or delay chargeable to plaintiff. In a motion filed by plaintiff it is alleged that by letter dated December 3, 1964 to the assignment judge plaintiff's counsel stated: 'At this time I would like to state that plaintiff is ready for trial and does very much desire to try this case * * *. It would be extremely helpful to me and my client if the case could be at a designated date in the January Term. * * *'

On April 5, 1965, which was the first day of the April Term, the case was assigned for trial on June 21, 1965.

On the same day, but from the chronology appearing in the record apparently later during the day, defendant Suchomel filed a motion to dismiss.

On August 15, 1964 when the notice under rule 215.1 was sent to counsel the defendant Reynolds was a party defendant, but the case against him had not been on file for a year. As to him the notice was premature.

On April 8, 1965 defendant Reynolds filed a motion to dismiss under rule 215.1, Rules of Civil Procedure.

On June 1, 1965 the court sustained the motion to dismiss as to the defendant Suchomel and on the same date overruled the motion to dismiss as to the defendant Reynolds. Plaintiff Kutrules and defendant Reynolds respectively appeal from the adverse rulings.

I. Defendant Suchomel seeking affirmance as to him and defendant Reynolds seeking reversal of the ruling adverse to him, argue that the court's order of November 24, 1964 continuing the case to the January 1965 term was ex parte and without jurisdiction. We do not agree. There is nothing in the record before us to support the claim that the ruling was ex parte within the meaning of rule 215.1, Rules of Civil Procedure.

We have repeatedly held that Rules of Civil Procedure have the force and effect of statutes. Krebs v. Town of Manson, 256 Iowa 957, 960, 129 N.W.2d 744; State v. District Court, 253 Iowa 903, 905, 114 N.W.2d 317; and Hubbard v. Marsh, 239 Iowa 472, 474, 32 N.W.2d 67.

Rule 1 provides that the rules shall govern practice and procedure.

Plaintiff's motion was filed October 20, 1964. Rule 82 requires forthwith mailing or delivery of copies by the clerk to attorneys of record for adverse parties.

It was stipulated that counsel for each defendant received copies of the motion pursuant to rule 82, Rules of Civil Procedure. They accordingly had notice of the filing on or about October 20, 1964.

Rule 114 required defendants to take notice of the motions and of the regular motion day on which they would be heard.

Rule 117 provides for at least one motion day each month. Except on conditions not appearing here all motions on file ten days or more are deemed submitted. Plaintiff's motion was sustained November 24, 1964. This was 35 days after filing. We assume that the trial court followed the requirements of the rules and that the motion was submitted in its regular order.

An order or ruling is not ex parte within rule 215.1 when counsel has a copy of the motion, is required to take notice of the time and place of submission, and it is submitted as required.

60 C.J.S. Motions and Orders § 2, says:

'Litigated motions are those made on notice to the adversary party, where he is afforded an opportunity to resist the application. Ex parte motions are applications made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties.'

II. Rule 215.1 provides that in all cases at law or in equity where the petition had been filed more than one year prior to July 15, the Clerk shall prior to August 15 give notice to counsel. (Emphasis added.) The operation of the rule is set in motion by the clerk's notice relative to cases more than one year old on July 15. A notice as to cases less than one year old is ultra vires. It does not deprive the court of any discretion nor make mandatory the assignment and trial of the case. In Talbot v. Talbot, 255 Iowa 337, 341, 122 N.W.2d 456, 458 we said: 'After such notice by the clerk, there is no discretion in the trial court to assign or not assign the case for trial * * *.'

In the case before us it was proper for the clerk to give notice to all counsel of record so that all might know of the situation. Defendant Reynolds might be vitally interested in the disposition of the case against defendant Suchomel. However, giving notice to counsel for defendant Reynolds, against whom the case was not a year old, did not create in Reynolds any independent right to dismissal.

There is nothing in the record before us to show that there has ever been a timely notice under the rule as to the case against defendant Reynolds. The case against the two defendants may be divisible and if so the rights of the two defendants are not necessarily tied together.

Neither did the fact that the case against defendant Reynolds was not a year old preserve any rights of plaintiff against defendant Suchomel. In Windus v. Great Plains Gas, 254 Iowa 114, 116 N.W.2d 410, a defendant by cross-petition brought in an additional party. The cross-petition was for indemnity or contribution. We held that an order authorizing the bringing in of a defendant on cross-petition did not automatically take the case out of the rule requiring dismissal. In the case before us plaintiff could not delay the operation of the rule in favor of the first defendant by bringing in another defendant at a later date.

III. In the case at bar we have an anomalous situation. On motion of defendant Suchomel the court dismissed the case as against said defendant. The motion was filed and sustained while the case was on the active trial assignment, assigned for trial on a date certain, and the date for trial had not yet arrived.

Rule 215.1 is designed, worded and interpreted to discourage dilatory tactics. Its declared policy is to require reasonable diligence. Its purpose is to clear our court dockets of dead wood and trial assignments of stale cases acting as barnacles to good procedure. We have repeatedly held that the operation of the rule is mandatory and have outlined the steps to be followed if dismissal is to be avoided.

In the first Windus case, supra, it was held that rule 215.1 is positive, definite and mandatory and that the operation of the rule is not discretionary with the trial court. The rule provides for alternative procedure, assignment and trial or dismissal. A continuance after dismissal is without jurisdiction. To...