Lanning v. Landgraf

Decision Date14 June 1966
Docket NumberNo. 52139,52139
Citation143 N.W.2d 644,259 Iowa 397
CourtIowa Supreme Court
PartiesCharles LANNING, Appellant, v. LaVerne LANDGRAF, Anna Ehlers, Malcoim Gustafson, John Deere, Inc., John Deere Des Moines Works, and Deere & Company, Appellees.

Robert L. Ulstad, Fort Dodge, for appellant.

Mack, Mack & Hansen, Storm Lake, for appellee Malcolm Gustafson.

Gibson, Stewart & Garrett, Des Moines, for appellees John Deere, Inc., John Deere Des Moines Works and Deere & Co.

Lund & Lund, Webster City, for appellee LaVerne Landgraf.

Vest & Mather, Sac City, for appellee Anna Ehlers.

MOORE, Justice.

On November 9, 1963 plaintiff filed his petition in three divisions seeking damages for personal injuries received while working on a farm owned by defendant Anna Ehlers operated as a partnership with defendant LaVerne Langraf. Plaintiff alleged he was injured when thrown from a farm elevator purchased by Landgraf from defendant Malcolm Gustafson which had been manufactured by John Deere, Inc. Plaintiff filed his first amendment December 12, 1963 correcting the spelling of certain words and Landgraf's name. On January 3, 1964 his second amendment was filed naming Deere and Company an additional defendant.

On November 30, 1963 John Deere, Inc., filed a special appearance which was repeated January 23, 1964 following plaintiff's amendment. On the latter date John Deere Des Moines Works also filed a special appearance and Deere and Company filed a motion to make plaintiff's amended petition more specific.

On January 17, 1964 Gustafson filed a motion to strike and also to make certain parts of plaintiff's petition more specific.

Landgraf and Ehlers having failed to move or plead after entering their appearances, plaintiff on January 7, 1964 filed a motion for default and judgment against each of them. Landgraf on January 30, 1964 filed a motion for more specific statement. Mrs. Ehlers filed nothing until May 15, 1964 when she answered plaintiff's petition as amended.

Notwithstanding the provisions of rule 117, Rules of Civil Procedure, which require a motion day at least every 30 days, these special appearances and various motions apparently received no attention by the court until at plaintiff's request they were considered on May 15, 1964. Judge Stillman then made this order: 'Special appearance of John Deere Des Moines Works is sustained. Plaintiff excepts. Special appearance of John Deere, Inc. is sustained. Plaintiff excepts. Plaintiff's motion for judgment against the defendants LaVerne Landgraf and Anna Ehlers is overruled. The Court on its own motion orders plaintiff to recast his pleadings herein into a single concise document as against the remaining defendants. For that reason the Court at this time gives no consideration to the pending motions of defendants for more specific statement.'

Rule 81, Rules of Civil Procedure, provides: 'Correcting or recasting pleadings. On its own motion or that of any party, the court may order any prolix, confused or multiple pleading, to be recast in a concise single document within such time as the order may fix. In like manner, it may order any pleading not complying with these rules to be corrected on such terms as it may impose.'

Judge Stillman did not fix time for filing a recast petition as clearly contemplated by rule 81. Plaintiff's attorney asserts he was not advised of the order to recast and that earlier one defendant had offered a substantial settlement. Defendants' attorneys claim plaintiff's counsel was present when the ruling was made. Whatever the reason may have been, the recast petition was not filed until August 6, 1964.

Ehlers filed her answer to plaintiff's recast petition August 18, 1964. Deere and Company on September 2, 1964 attacked plaintiff's new petition with motions to strike and for more specific statement. Gustafson's motion to strike and for more specific statement was filed October 16, 1964. Landgraf filed such motions on November 4, 1964.

Thus it appears all parties acquiesced in late filing of pleadings and motions. Inactivity prevailed until July 16, 1965 when the District Court Clerk mailed notice to all parties under rule 215.1. The motions attacking the recast petition had been given no attention by the attorneys or the trial court.

On August 31, 1965 plaintiff filed a certificate of readiness and application to avoid dismissal for want of prosecution under rule 215.1. Defendants Deere, Gustafson and Landgraf immediately thereafter filed motions to strike plaintiff's certificate and application.

At the request of plaintiff's counsel the trial court, Judge Hand, set the pending motions for hearing on September 20, 1965. On that date Judge Hand filed the following ruling: 'This action was commenced on November 9, 1963 by the filing of a petition by the plaintiff against various defendants. Motions were filed by the various defendants, and on May 15, 1964 Judge G. W. Stillman * * * sustained a special appearance of John Deere Des Moines Works, and * * * ordered the plaintiff to recast his pleadings upon the Court's own motion.

'Under Rule 86 where a Court orders pleadings recast, it must be done within 7 days after the mailing and delivery of such notice, and in the present case the Court has been informed that this notice, even though it was not given, is not required because the plaintiff's attorney was present in Court at the time of such ruling.

'On August 6, 1964, which is some months after the date of the Order, the plaintiff did file his amendment, but the Court finds now that such amendment is purely a repetition of the petition as originally filed. To this amendment various motions have been filed, and now on August 31, 1965 the plaintiff filed what is headed: 'Application to Avoid Dismissal for Want of Prosecution', which the Court has read, and which facts set out therein state that there is a certificate of readiness for trial, but this is not correct as the case is not at issue.

'Therefore, the Court upon its own Motion is dismissing the petition of the plaintiff for failure to abide by the Ruling of the Court on May 15, 1964, in that said pleadings were not recast within 7 days, and therefore the plaintiff had elected to stand on the record heretofore made. This dismissal, however, is not as to the defendant Anna Ehlers who has already filed answer.

'IT IS THEREFORE ORDERED that the amendment to the petition as filed is hereby dismissed as to the defendants LaVerne Landgraf, Malcolm Gustafson, and John Deere & Company.'

Plaintiff's motion to vacate this order was resisted by Deere, Gustafson and Landgraf and denied by the court on October 15th. Plaintiff has appealed from Judge Hand's order of September 20th.

The primary question presented is whether the May 15th order to recast plaintiff's petition made under rule 81 became a final adjudication under rule 86 at the expiration of seven days thereafter.

I. While the precise effect of rule 86 may not be entirely clear we are satisfied the trial court (Judge Hand) erred in dismissing plaintiff's petition as recast.

We have repeatedly said rule 86 was designed primarily to render unnecessary the formal entry of final judgment agaisnt a party who obviously has decided to stand on his pleadings following a ruling on a motion to dismiss which is adverse to him. Such a party in effect suffers a final adjudication against him. Forte v. Schlick, 248 Iowa 1327, 1330, 85 N.W.2d 549, 551; Winneshiek Mutual Insurance Ass'n v. Roach, 257 Iowa 354, 359, 360, 132 N.W.2d 436, 440; Anderson v. National By-Products, Inc., 257 Iowa 921, 925, 135 N.W.2d 602, 604.

We have not decided the exact question presented here although we have indicated a late filing following an order to recast is not an obivous election to stand on a pleading and to suffer a final adjudication against the party so ordered.

In Davis v. Mater, 248 Iowa 1, 79 N.W.2d 400, the court ordered plaintiff to recast her petition, 'to avoid multiple pleading and the statement of inconsistent matters; and to state her cause of action plead in a more concise manner' as authorized by rule 81. Plaintiff filed her recast petition four days after the expiration of the 30 days recited in the order. Because of such failure the trial court dismissed the petition and rendered judgment against plaintiff. We reviewed the order to recast and held it erroneous. At page 7, 248 Iowa, page 403, 7. N.E.2d, we say: 'The order requiring the recasting of the petition, the subsequent order dismissing both petitions and the judgment against plaintiff were erroneous and require that the judgment be reversed.' We think this negatives a claim a late filing after an order to recast amounts to an obvious standing on the original petition.

In Morf v. Washburn, 250 Iowa 759, 94 N.W.2d 756, defendant asserted plaintiffs' failure to amend within seven days after a motion for more specific...

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5 cases
  • Ewing v. Johnston
    • United States
    • United States Court of Appeals (Georgia)
    • 4 Septiembre 1985
    ...but may be implied in law by conduct or circumstances inconsistent with the right to judgment. Sheets, supra; Lanning v. Landgraf, 259 Iowa 397, 143 N.W.2d 644, 647; Pollard & Haw v. American Stone Co., 111 Va. 147, 68 S.E. 266, 267; see generally 47 AmJur2d 190, Judgments § 1161. Acts whic......
  • Kohorst v. Iowa State Commerce Com'n, 69627
    • United States
    • United States State Supreme Court of Iowa
    • 16 Mayo 1984
    ...and he does not comply within seven days as required by Iowa Rule of Civil Procedure 86. The court cited Lanning v. Landgraf, 259 Iowa 397, 143 N.W.2d 644 (1966), to support its conclusion that a party who fails to plead within seven days suffers a final adjudication against him unless the ......
  • State ex rel. Unger v. State
    • United States
    • Supreme Court of Nebraska
    • 13 Mayo 2016
    ...S.W.2d 469 (Tenn.App.1986) ; Whitehall Packing Co. v. Safeway Truck Lines, 68 Wis.2d 369, 228 N.W.2d 365 (1975) ; Lanning v. Landgraf, 259 Iowa 397, 143 N.W.2d 644 (1966) ; 49 C.J.S. Judgments § 276 (2009).22 Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 ...
  • Theis v. James
    • United States
    • United States State Supreme Court of Iowa
    • 11 Marzo 1971
    ...If no pleading is filed within the seven days a motion for default would then be good under rule 230(b), R.C.P. Lanning v. Landgraf, 259 Iowa 397, 403, 143 N.W.2d 644 (1966). Any other view would nullify Pedersen v. Thorn and City of Des Moines v. Barnes, both supra, which prohibit defaults......
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