Lotz v. United Food Markets
| Decision Date | 30 December 1938 |
| Docket Number | 44276. |
| Citation | 283 N.W. 99,225 Iowa 1397 |
| Parties | LOTZ v. UNITED FOOD MARKETS, Inc. |
| Court | Iowa Supreme Court |
Appeal from District Court, Madison County; E. W. Dingwell, Judge.
Action at law for damages for personal injuries alleged to have been caused by the defendant's negligence. At the close of plaintiff's evidence the trial court sustained a motion for a directed verdict in favor of the defendant. Motion for new trial was overruled, and the plaintiff appeals.
Affirmed.
C. A Robbins and Blanche G. Risher, both of Winterset, and Paul G Risher, of Des Moines, for appellant.
Putnam, Putnam, Fillmore & Putnam, of Des Moines, and Percival & Wilkinson, of Winterset, for appellee.
In this action the plaintiff sued to recover for damages alleged to have been sustained by her in falling down a stairway in a store operated by the defendant. On the trial of the case, at the close of the plaintiff's evidence, the defendant filed a motion for a directed verdict in its favor, which contained seven separately numbered grounds. This motion was sustained generally. A motion for new trial, containing five separately numbered grounds, was filed by the plaintiff March 21, 1936, and, on hearing, was overruled on the 13th day of February, 1937. On June 3, 1937, plaintiff filed notice of appeal in the office of the clerk of the district court. We are confronted at the outset with a motion to dismiss this appeal, and this requires that we first direct our attention to certain matters of record.
The notice of appeal stated that the appeal was taken " from the judgment of the court entered in the above-entitled cause dismissing Plaintiff's Petition and from the Ruling and Order of the court instructing the jury to return a verdict in favor of the Defendant, and from the Ruling of the court Overruling Plaintiff's Motion for a New Trial." The first ground of appellee's motion to dismiss is, that the appeal record shows no judgment dismissing plaintiff's petition, nor any other judgment from which an appeal could be taken. Following the filing of the motion to dismiss, the appellant filed an amendment to her abstract, in which she states that the abstract should be amended, by the insertion of the following:
The above is the only judgment or purported judgment that anywhere appears in the appeal record, and appellee contends that this is not a judgment from which an appeal could be taken.
In Kennedy v. Citizen's National Bank, 119 Iowa 123, 93 N.W. 71, the trial court filed a signed order which found plaintiff entitled to the relief demanded; " ordered, adjudged, and decreed that the plaintiff have and recover of the defendant the sum of $42.60," with interest; directed defendant to pay said sum and interest to the clerk within sixty days, " and in default of so doing" the clerk was directed " to enter judgment for same at the expiration of said sixty days." After setting out the contents of the order substantially as above stated, the opinion proceeds to state:
See, also, Shannon v. Scott, 40 Iowa 629; Pittman v. Pittman, 56 Iowa 769, 2 N.W. 536; Warder, Mitchell & Glessner v. Schwartz et al., 65 Iowa 170, 21 N.W. 502; Jones & Dickey v. Givens et al., 77 Iowa 173, 41 N.W. 608; Martin v. Martin, 125 Iowa 73, 99 N.W. 719; Corning v. Maynard, 179 Iowa 1065, 162 N.W. 564; Deal v. Marten, 214 Iowa 769, 240 N.W. 686; Harmon v. Hutchinson Ice Cream Co., 215 Iowa 1238, 247 N.W. 623.
As the appeal record in this case fails to show any judgment of record from which an appeal could be taken, so far as the appeal purports to be from any judgment, it cannot be considered by this court.
Appellee's motion to dismiss also claims that the portion of the appeal which the notice states is " from the ruling and order of the court instructing the jury to return a verdict in favor of the defendant," cannot be considered by this court. The ruling on this motion was made March 11, 1936. The motion for new trial was filed March 21, 1936, and was overruled on February 13, 1937. The notice of appeal was not filed until June 3, 1937. Section 12832, Code of 1935, is as follows:
Conceding that, because a motion for a new trial was filed, the statute did not require the plaintiff to take her appeal within four months from the entry of the order sustaining defendant's motion for a directed verdict, but allowed her sixty days after the entry of the ruling on the motion for a new trial to perfect her appeal from the order sustaining the motion for a directed verdict, it is apparent that the appeal from that order was not perfected within such sixty day period. So far as the notice of appeal purports to appeal from " the ruling and order of the court instructing the jury to return a verdict in favor of the defendant," such appeal was not timely and cannot be considered by this court.
As to that part of the appeal which the notice states is " from the ruling of the court overruling plaintiff's motion for new trial," the appeal was timely. Where an appeal, however, is merely from an order overruling a motion for new trial, only such questions as were raised by such motion for new trial can be considered on appeal. Mueller Lumber Co. v. McCaffrey, 141 Iowa 730, 118 N.W. 903; Powers v. Des Moines City R. Co., 143 Iowa 427, 121 N.W. 1095; Cox v. American Express Co., 147 Iowa 137, 124 N.W. 202; Pride v. Accident Ass'n, 207 Iowa 167, 216 N.W. 62, 62 A.L.R. 31; Spaulding v. Miller, 216 Iowa 948, 249 N.W. 642. Indeed, we do not understand that the appellee questions this proposition, but does contend:-first, that the errors alleged and relied on by appellant for reversal have not been presented to this court in conformity with our rules; and, second, that, even if the alleged errors could be considered, the rulings of the trial court which are alleged to be erroneous would have to be affirmed.
The errors alleged and relied upon by appellant for reversal are, in substance, as follows:-1. That the court erred in directing a verdict for the reason that the proof showed that the appellant was an invitee on the premises. 2. That the court erred in directing a verdict for the reason that, under the proof, the stairway of appellee was a trap and made a question for the jury, even though the plaintiff was a mere licensee. 3. That the court erred in not granting a new trial on account of its error in excluding evidence offered by appellant tending to show a custom of the appellee. 4. That the court erred in not granting a new trial for the reason that it erred in excluding evidence offered by appellant tending to show that the removal of boxes from its premises was a benefit to appellee. Rule 30 of this court, after providing that appellant's brief shall contain a short and clear statement showing certain matters, further states: " The appellant shall then state his first error relied upon for a reversal, and shall set out so much of the record as refers thereto, together with the ruling of the court thereon; and shall then point out specifically and in concise language, the complaint against the ruling of the court."
Alleged errors 1 and 2 are based upon what appellant claims was shown by the proof, but nowhere is any evidence connected with these alleged errors set out or any...
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