Neoco, Inc. v. Christenson, 64479

• Decision Date: 25 November 1981
• Docket Number: No. 64479,64479
• Citation: 312 N.W.2d 559
• Parties: NEOCO, INCORPORATED, Appellee, v. B. C. CHRISTENSON, Anna Jean Christenson, Cyrus O. Christenson, Duane L.Christenson, Arlet C. Nelson, Sonnet Tool, Dugas Machine Works, and Herb W.Butzback, and all Unknown Claimants, Appellants.
• Court: Iowa Supreme Court

Page 559

312 N.W.2d 559

NEOCO, INCORPORATED, Appellee, v. B. C. CHRISTENSON, Anna Jean Christenson, Cyrus O. Christenson, Duane L.Christenson, Arlet C. Nelson, Sonnet Tool, Dugas Machine Works, and Herb W.Butzback, and all Unknown Claimants, Appellants.

No. 64479.

Supreme Court of Iowa.

Nov. 25, 1981.

G. Gregory Kelly, Des Moines, for appellants.

Dale Sharp of Smith, Nutty, Sharp, Ruigh & Benson, Ames, for appellee.

Considered by LeGRAND, P. J., and HARRIS, ALLBEE, McGIVERIN, and LARSON, JJ.

LeGRAND, Justice.

This is an appeal from a summary judgment decreeing partition of real estate located in the City of Ames. We affirm the trial court.

Title to the real estate devolved from A. J. Christenson and Amanda Christenson, husband and wife, who owned the property as tenants in common until A. J. Christenson's death in 1960. By virtue of inheritance from him and a quitclaim deed from Amanda, title became vested equally in their four children, B. C. Christenson, Cyrus O. Christenson, Duane L. Christenson, and Arlet C. Nelson.

Plaintiff, Neoco, Inc., acquired B. C. Christenson's one-fourth interest by sheriff's deed after levy and sale pursuant to a judgment obtained against him. Plaintiff brought this action to partition the property, naming the other owners as defendants. Amanda Christenson and three lien holders were also named as defendants. They take no part in this appeal.

Plaintiff filed a motion for summary judgment to which the defendants filed a resistance. After a hearing on the motion, a decree was entered sustaining the motion and directing that the property be appraised and sold.

The defendants contend that the trial court erred in finding there was no genuine issue of material fact. This raises a preliminary question which we consider first.

After the hearing, but before the decree was entered, the defendants filed a further resistance, claiming for the first time that the property should be partitioned in kind rather than by sale. The trial court held this resistance was not timely and refused to consider it.

Defendant's principal complaint concerns the trial court's refusal to consider the matters raised by the further resistance. Had it done so, defendants say there would have been genuine issues of material fact for trial.

Iowa R.Civ.P. 237 sets out the procedure for summary judgment. Before such a judgment may be entered, the court must find the absence of any genuine issue of material fact. The rule provides for notice and hearing at which resistance may be made as specified in the rule. Defendants had their hearing at which they offered no valid defense. What they seek now is a second hearing. The record discloses no reason why the matters sought to be raised belatedly were not brought forward at the time of the hearing.

The situation is not unlike the filing of late amendments to pleadings which trial judges have considerable discretion to either allow or disallow. We have adopted a liberal rule for such amendments. See Smith v. Village Enterprises, Inc., 208 N.W.2d 35, 37 (Iowa 1973). However, we do not permit those which raise new issues. Id. The defendants' further resistance here did just that. It brought up new and theretofore unclaimed defenses. For the first time defendants asserted a right to introduce vital testimony pursuant to rule 237(e).

We hold the trial court did not abuse its discretion in refusing to consider the further resistance. Rule 237(e) makes it clear the matters before the court are those which are on file when the hearing is held. We do not...