Neff v. Iowa State Highway Commission

• Decision Date: 17 October 1961
• Docket Number: No. 50373,50373
• Citation: 253 Iowa 98,111 N.W.2d 293
• Parties: Clarence NEFF and Mrs. Mae Neff, Appellees, v. IOWA STATE HIGHWAY COMMISSION of the State of Iowa, Appellant.
• Court: Iowa Supreme Court

Page 293

111 N.W.2d 293

253 Iowa 98

Clarence NEFF and Mrs. Mae Neff, Appellees, v. IOWA STATE HIGHWAY COMMISSION of the State of Iowa, Appellant.

No. 50373.

Supreme Court of Iowa.

Oct. 17, 1961.

Evan L. Hultman, Atty. Gen., C. J. Lyman, Sp. Asst. Atty. Gen. for Iowa State Highway Commission, James E. Thomson, Gen. Counsel for Iowa State Highway Commission, James H. Cothern, Osceola, for appellant.

Killmer & Reynoldson, Osceola, for appellees.

PETERSON, Justice.

Plaintiffs were the owners of 200 acres of land near Osceola in Clerke County. It is in the path of Interstate Highway No. 35. The highway runs through the center of the farm, leaving 88.4 acres on the east side, and approximately 93 acres on the west side. The highway took approximately 18 1/2 acres of plaintiffs' farm.

Application for condemnation was made by the Iowa State Highway Commission and the appraisal was held on July 12, 1957. The appraisers awarded plaintiffs $13,163.50.

Plaintiffs appealed to the District Court and the case was tried in January 1960. On January 8, 1960, the jury returned a verdict fixing the amount of plaintiffs' recovery at $18,500.

On January 19, 1960, plaintiffs filed motion for judgment on the verdict, requesting that the court enter judgment for the amount of the verdict of $18,500, together with interest and costs, and fees as provided by statute.

On January 21, 1960, defendant filed resistance to motion for judgment on the verdict alleging that the interest should not commence to run on July 12, 1957, the date of the award by the appraisers, but should begin on May 15, 1958, the date on which defendant claims it took possession.

On February 19, 1960, the trial court filed its judgment entry on condemnation appeal. It entered judgment for $18,500 with 5% interest from July 12, 1957, and made an allowance of $1,750 attorneys' fees in favor of plaintiffs' attorneys. The total court costs, including attorneys' fees, were $1,870.92.

On February 26, 1960, defendant filed 'Motion for enlarged or amended findings and conclusions.' The only question raised in the motion was that the interest should commence to run on the judgment from May 15, 1958, and not from July 12, 1957. On March 29, 1960, the trial court overruled the motion.

On April 11, 1960, appellant filed notice of appeal to the Supreme Court from the judgment entry on condemnation appeal, as to the date of commencement of interest. On March 28, 1961, appellees filed motion to dismiss the appeal, to which motion appellant filed resistance.

The basis for the motion to dismiss is that the notice of appeal was not given within thirty days from February 19, 1960, when the final judgment in the case was entered by the court.

The contention of appellees is that defendant did not file a motion for judgment notwithstanding the verdict as provided by R.C.P. 243, 58 I.C.A., nor a motion for new trial under R.C.P. 244.

R.C.P. 335 in part provides: 'Time For Appeal. Appeals to the supreme court must be taken within, and not after, thirty days from the entry of the order, judgment or decree, unless a motion for new trial or for judgment notwithstanding the verdict is filed as provided in rule 247, and then within thirty days after the ruling on such motion;' (emphasis ours).

Appellees therefore contend that no document was filed under R.C.P. 247 extending the time for filing notice of appeal.

Appellants' motion is called 'Motion for enlarged or amended findings and conclusions.' It is the contention of appellees that such motion was neither a motion for judgment notwithstanding the verdict, nor a motion for new trial as outlined in R.C.P. 247. Therefore, the filing of the notice of appeal on April 11, 1960, was not timely and was filed almost two months late. No new question was raised in the motion. The question raised had been settled in the judgment entry.

Appellant contends that its motion was, in fact, a motion for new trial. Appellees allege the words 'enlarge or amend findings and conclusions' is not synonymous with 'new trial.'

Although not too directly in point, appellees cite in support of their position the cases of Mollring v. Mollring, 184 Iowa 464, 167 N.W. 524; Burt v. Burt (no Iowa Report), 35 N.W.2d 847; Jackson v. Jackson, 248 Iowa 1365, 85 N.W.2d 590. It is our position that this specific question has not heretofore been directly before this court.

The words 'findings may be enlarged or amended' are used in R.C.P. 179(b). Such words do not appear in R.C.P. 335, as affecting the thirty-day period for notice of appeal.

We will consider the cases and citations of appellant in support of its position.

The first case cited is Kendall v. Lucas County, 1868, 26 Iowa 395. The case is not applicable as supporting appellant's position. The judgment was rendered on November 7, 1867. A motion for new trial was timely filed. The motion for new trial was overruled by the court on April 3, 1868. In 1868, under the statutes in effect at that time, the aggrieved party had one year in which to serve notice of appeal. The notice of appeal was served on November 11, 1868. It, therefore, appears that the notice was timely served, being served long before the expiration of the year on which ruling was made by the trial court on a motion for new trial.

Appellant cites Home Savings Bank of Slater v. Klise, 205 Iowa 1103, 216 N.W. 109, 110. The court said: 'The abstract states: 'Thereupon the court did consider said ruling and heard the parties hereto fully.' Regardless of what it was called, it was so considered by the parties and the court, and has served the purpose of a motion for a rehearing or new trial.' Having been so considered by both parties and the court, it does not support appellant's position in the instant case.

See also Stover v. Central Broadcasting Co., 247 Iowa 1325, 78 N.W.2d 1, 5. We said: '* * * we have thought it advisable to call attention to the law governing attempted appeals from rulings denying motions to set aside or vacate or reconsider previous rulings. Generally such an appeal raises no legal question and no error may be predicated upon it.' By analogy this sustains appellees' position.

Another case cited by appellant is Morrow v....