Moreno v. Vietor, 52819

• Decision Date: 06 February 1968
• Docket Number: No. 52819,52819
• Citation: 261 Iowa 806,156 N.W.2d 305
• Parties: Betty MORENO, Petitioner, v. Harold D. VIETOR, Judge of the 18th (now 8th) Judicial District of Iowa, Respondent.
• Court: Iowa Supreme Court

Page 305

156 N.W.2d 305

261 Iowa 806

Betty MORENO, Petitioner, v. Harold D. VIETOR, Judge of the 18th (now 8th) Judicial District of Iowa, Respondent.

No. 52819.

Supreme Court of Iowa.

Feb. 6, 1968.

David M. Elderkin, of Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for petitioner.

C. W. Garberson and James Carter, of Shuttleworth & Ingersoll, Cedar Rapids, for respondent.

STUART, Justice.

Plaintiff by certiorari challenges the legality of the respondent's action in recalling an execution issued in Moreno v. Priester. Respondent held the execution was premature because no judgment had been entered upon the jury verdict. The question before us is whether the procedure in Linn County following a jury verdict satisfied the requirements of R.C.P. 223 and 227 for the entry of a judgment.

We will refer to the parties as follows: Betty Moreno, plaintiff; Priester, defendant; and the trial court as respondent.

On July 12, 1964, plaintiff was injured while riding as a passenger in a vehicle which was struck from the rear by another vehicle owned by William H. Webb, Sr. and driven by defendant. At and prior to the date of the accident Webb was insured by Vigilant Insurance Company.

Following the accident, plaintiff commenced this action and Priester, through his attorney, John McCracken, made demand upon Vigilant Insurance Company to defend him in said action. Vigilant Insurance Company denied coverage under its policy and refused to defend. He thereupon defended by his own attorney, John E. McCracken.

On July 27, 1965, the jury in this cause returned a verdict against defendant and in favor of plaintiff for $20,505.55. The same day, the trial court, Judge B. J. Maxwell, following the usual and customary practice of the Eighteenth Judicial District, made a handwritten calendar entry as follows:

'The jury returned a sealed verdict at 9:30 P.M., July 27, 1965, which verdict was as follows: 'We, the jury find in favor of the Plaintiff, Betty Moreno, and against the Defendant and fix the amount of her recovery at $20,505.55. Signed by Alvin A. Christensen, Foreman.''

On July 28, 1965 the clerk made the following entry under this case in the Linn County District Court Record at page 230 of volume 229.

'Now, to wit on this 28th day of July, 1965, this cause comes on for hearing before the court, Hon. B. J. Maxwell, Judge presiding: Barnes, Wadsworth, Elderkin, Locher and Pirnie, appearing as attorneys for the plaintiff, and McCracken & Carlin, and Shuttleworth & Ingersoll appearing as attorneys for the defendants. The jury returned a sealed verdict at 9:30 P.M. July 27, 1965 which verdict was as follows: 'We, the jury, find in favor of the plaintiff, Betty Moreno, and against the defendant, and fix the amount of her recovery at $20,505.55.' Signed by Alvin R. Christensen, Foreman.

'We, the jury, find in favor of the plaintiff, Betty Moreno, and against the defendant and fix the amount of her recovery at $20,505.55. Alvin R. Christensen, Foreman.'

Defendant, by answer, had alleged a covenant not to sue between plaintiff and the owner of the car, Webb, and claimed an offset or credit against any judgment that might be entered against him in the amount of the consideration paid therefor. On the 9th day of September, 1965 the trial court ruled on this division of the answer as follows:

'It is the judgment of the Court that the issue raised by defendant Priester in his Division III is denied and that the judgment entered against the defendant Priester in favor of the plaintiff upon the jury's verdict herein shall be in full force and effect as to the full amount thereof and shall not be reduced in any part by the consideration paid for the Covenant not to Sue executed in favor of the defendant Webb.

'All of which is found, Ordered, Adjudged and Decreed. B. J. Maxwell, Judge of the 18th Judicial District of Iowa.'

On October 21, 1965, all the judges of the district including respondent signed the following entry in the district court record.

'The foregoing Miscellaneous Law Record of the District Court of the State of Iowa in and for Linn County, made by the clerk and all prepared and signed and enrolled entries made by the court and recorded by the clerk in this volume of the record, and all records made by the clerk in all other volume's of the Court's records, including Law, Equity, Criminal, Probate and Inebriate records at the July, 1965, Term all made, entered and recorded by the Clerk of Court are approved in open court by the Judges of the said court presiding; at the said July term.'

Execution against Priester was returned unsatisfied and plaintiff's counsel repeatedly postponed a debtor's examination of defendant at his request.

Defendant brought a separate action in the United States District Court for the Southern District of Iowa, 268 F.Supp. 156 against the Vigilant Insurance Company which on May 3, 1967 resulted in a judgment against the company requiring it to hold defendant Priester harmless from any liability for injuries arising out of the accident.

On July 5, 1967, prior to a hearing against Priester as a judgment debtor set for the next day, a motion was filed entitled Motion for Order Recalling Execution and Cancelling Debtor's Examination.

On July 28, 1967, after hearing, respondent entered a ruling and order holding that the plaintiff had no judgment against the defendant and recalled the execution issued on May 2, 1967, and cancelled the debtor's examination ordered pursuant to said execution. The respondent on July 31, 1967 ordered the clerk of the court to enter judgment upon the jury verdict. Attorneys for Vigilant Insurance Company, having entered their Appearance for and on behalf of the defendant in this cause, purported to file, as of July 31, 1967, Notice of Appeal from this judgment.

Plaintiff-petitioner thereafter filed her Petition for Writ of Certiorari in this cause.

In Iowa, a judgment has no effect until it has been entered of record by the clerk. Street v. Stewart, 226 Iowa 960, 963, 285 N.W. 204, 205; Case v. Plato, 54 Iowa 64, 66, 6 N.W. 128, 129; Lotz v. United Food Markets, Inc., 225 Iowa 1397, 1400, 283 N.W. 99, 101; Rudolph Hardware Co. v. Price, 164 Iowa 353, 358--359, 145 N.W. 910; State v. Wieland, 217 Iowa 887, 890--891, 251 N.W. 757, 758.

Although some of our cases say there is no judgment until it has been entered of record, we believe the more accurate analysis of the cases is that a judgment is rendered when it is announced, or when the judge writes in his calendar a statement of his decision or a jury returns a verdict but that there is no competent evidence of such rendition until the entry is made on the court record. Street v. Stewart, 226 Iowa 960, 963, 285 N.W. 204, 205; 13 I.L.R. 242--243. This view is supported by the fact that for some purposes a judgment relates back to the date ordered. Street v. Stewart, supra; Hoffman-Bruner Granite Co. v. Start, 132 Iowa 100, 103, 108 N.W. 329, 330; Coffey v. Gamble, 117 Iowa 545, 549, 91 N.W. 813, 814.

In some instances books other than the Miscellaneous Law Record may constitute a proper record book, Carr v. Bosworth & Sons, 72 Iowa 530, 532, 34 N.W. 317, 318, (book of decrees of foreclosure of mortgages); Brown v. Barngrover, 82 Iowa 204, 207--208, 47 N.W. 1082, 1083, (record of judgments by confession) but the record book is involved here. Case v. Plato, supra; Lotz v. United Food Markets, Inc., supra; Rudolph Hardware Co. v. Price, supra; State v. Wieland, supra.

An entry in either or both the judgment index or combination docket which refers to a judgment is not sufficient to comply with the requirement that a judgment be entered of record. Kennedy v. Citizens National Bank, 119 Iowa 123, 124--125, 93 N.W. 71; Lotz v. United Food Market, supra; Rudolph Hardware Co. v. Price, supra; State v. Wieland, supra.

The recording of a jury verdict by the clerk as required by R.C.P. 204 does not constitute the entry of a judgment. Wilson v. Corbin, 241 Iowa 226, 228, 40 N.W.2d 472, 474; Scott v. Manley, 240 Iowa 722, 725, 36 N.W.2d 474, 476. (The cited cases do not involve jury verdicts, but the analogy of a directed verdict and an opinion of the court appears to be sound.)

No execution may validly issue until judgment has been entered in the record book. Winter v. Coulthard, 94 Iowa 312, 315, 62 N.W. 732, 733--734.

An appeal will not lie from the judgment of the district court until that judgment has been entered of record. Hoffman-Bruner Granite Co. v. Stark, 132 Iowa 100, 103, 108 N.W. 329, 330; Street v. Stewart, 226 Iowa 960, 965, 285 N.W. 204, 206; Wilson v. Corbin, 241 Iowa 226, 228, 40 N.W.2d 472, 474. The date of entry of the judgment is, therefore, of utmost importance to the parties in the original suit. If judgment was not entered until July 31, 1967, Priester filed a timely notice of appeal.

Our determination here depends upon whether the clerk's entry in the Miscellaneous Law Record on July 28, 1965, was sufficient to constitute a judgment entry. The jury verdict is recorded twice. Plaintiff claims this entry thus satisfies both R.C.P. 204 which requires the clerk to enter the jury verdict of record and R.C.P. 223 which states: 'The clerk must forthwith enter judgment upon a verdict when filed, * * *.' Defendant claims, and the respondent held, this notation did not constitute a judgment entry and as no judgment entry appeared, the foregoing rules governed.

We would be less than candid if we failed to acknowledge our approach to this case has been influenced by the 15,000 similar entries in Linn County. When faced with a situation in which hundreds of mortgage foreclosures would be rendered invalid if the court held the clerk was not permitted to keep a separate record book for 'Decrees of the Foreclosure of Mortgages', we said: 'It would be, indeed, a bold court which, following the language of the statute rather than its spirit, would hold the decree upon which...