McKinney v. Hirstine, 51372
| Decision Date | 15 December 1964 |
| Docket Number | No. 51372,51372 |
| Parties | Connie M. McKINNEY and Leonard M. McKinney, Appellees, v. Lloyd M. HIRSTINE and C. E. Erickson Co., Inc., Appellants. |
| Court | Iowa Supreme Court |
Brunk, Janss, Dreher, Wilson & Adams, Des Moines, for appellant Lloyd M. Hirstine.
John Paul Jones and W. C. Hoffmann, Des Moines, for appellant C. E. Erickson Co., Inc.
Stewart, Miller, Wimer, Brennan & Joyce and Lex Hawkins & Associates, Des Moines, for appellees.
This appeal brings before us another controversy arising under the provisions of Rule of Civil Procedure 215.1, 58 I.C.A. The decisive question now before us is the effect of a continuance to a term certain granted by proper order of the court, when the case was not tried and no further continuance granted at the term to which the continuance was ordered.
The plaintiffs' original petition was filed on December 27, 1961. This brought the case under the provisions of the rule after July 1, 1963; and on August 15, 1963 the clerk of the Polk District Court sent the required notice to all counsel of record. The notice advised that the case would be dismissed if not tried at the September, 1963, term of the court. Prior to the expiration of the September term the case was continued, by proper proceedings and order of the court, to the November, 1963, term. No dispute arises as to these facts.
Nothing was done at the November term in the way of a trial or a further application for continuance. The November term having ended and the January, 1964, term having commenced, the defendants on January 10, 1964, filed their separate motions to dismiss under Rule 215.1. The motions were each denied by the trial court, and we granted leave to the defendants to appeal.
On November 6, 1963, which was during the November term, the plaintiffs filed a certificate of readiness for trial. Objections were filed by the defendants on November 13 next, and amendments to answers were filed by the defendants during the November term, and these motions were undisposed of at that term. They were, however, ruled upon by the trial court at the same time it denied the Rule 215.1 motions to dismiss.
I. It is not a pleasant duty to advise litigants that they slept upon their rights and their cases must be dismissed without a trial on the merits. But Rule 215.1 is mandatory; it serves a useful purpose in that it prevents unnecessary delays in the disposition of suits, and compels expeditious determinations of the issues involved before they are lost in the mists of legal antiquity. Although the rule has been the subject of several decisions and interpretations, and should be, if it is not, well known to the legal profession, we set out the material portions again: 'It is the declared policy that in the exercise of reasonable diligence every civil and special action, except under unusual circumstances, shall be brought to issue and tried within one year from the date it is filed and docketed and in most instances within a shorter time.
'All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at the next term commencing after August 15 of said year. The clerk shall prior to August 15 give notice to counsel of record as provided in rule 82 of:
and the notice shall state that such case will be for trial and subject to dismissal if not tried in the next succeeding terms pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiff's costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte. * * *'
The substantial question now before us concerns the effect of the continuance to the November, 1963 term. Did this take the case entirely out of the application of the rule, until the next July 15, when another notice must be given; or did it merely continue it to the 'term certain', leaving all other aspects still in force and effect. To ask the question seems to us to answer it.
A 'continuance' generally means only that the date of hearing or trial is postponed. It does not affect the merits of the case; it does not change any rulings that have been made; it leaves all matters as they were before, except that the time is extended. In State v. Rourick, 245 Iowa 319, 324, 60 N.W.2d 529, 532, we said: 'Furthermore, while the word 'continuance...
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