Newbury v. Getchell & Martin Lumber & Mfg. Co.

• Decision Date: 05 October 1898
• Citation: 106 Iowa 140,76 N.W. 514
• Parties: NEWBURY v. GETCHELL & MARTIN LUMBER & MANUFACTURING CO.
• Court: Iowa Supreme Court

106 Iowa 140

76 N.W. 514

NEWBURY

v.GETCHELL & MARTIN LUMBER & MANUFACTURING CO.

Supreme Court of Iowa.

Oct. 5, 1898.

Appeal from district court, Polk county; T. F. Stevenson, Judge.

Action at law, submitted on motions and applications for a modification of the rules. Judgment affirmed.N. T. Guernsey, for appellant.

Thos. A. Cheshire, for appellee.

ROBINSON, J.

The final judgment from which the appeal in this case was taken was rendered against the defendant on the 6th day of November, 1897. On the 9th day of the same month the defendant served notice of appeal, and secured the clerk of the district court his fees for a transcript. On the 12th day of April, 1898, the appellee served upon the appellant a motion to affirm the judgment of the district court, on the ground that the appellant had not filed in the office of the clerk of this court, 30 days before the second term after the appeal was taken, an abstract of the record. The appellee had the case docketed, and filed with his motion a certified copy of the judgment, supersedeas bond, notice of appeal, and proof of service thereof. On the same day the appellant filed an application for an extension of time in which to file an abstract, and two days later filed its abstract. On the 27th day of that month the appellant applied to a judge of this court for an order that the filing of the abstract should stand as a sufficient compliance with the rules of this court, and that the rules be waived or modified for that purpose. There has not been a ruling upon either application. On the 5th day of May, 1898, the defendant caused to be served a second notice of appeal, and six days later the appellee served, and on the next day filed, a motion to dismiss that appeal. Resistance has been made to the several motions and applications mentioned, and written arguments have been filed.

1. The motion of the appellee to affirm is based upon section 28 of the statutes and rules regulating the practice in this court, which is as follows:

“Sec. 28. If an abstract of the record is not filed by appellant thirty days before the second term after the appeal was taken, unless further time is given by the court, or a judge thereof, for cause shown, the appellee may file an abstract of such matters of record as are necessary, or may file a copy of the final judgment or order appealed from, notice of appeal and returns of service thereof, certified by the trial court, and cause the case to be docketed, and the appeal upon motion shall be dismissed, or the judgment or order affirmed.”

So much of that section as is involved in the questions before us is a copy of section 4120 of the Code.

In support of the application for further time in which to file an abstract, the appellant filed an affidavit of its president, which shows that the appeal was taken in good faith, and that Mr. Guernsey, the attorney for the appellant, had been instructed to perfect the appeal, and present the cause in this court. The application was also accompanied by the affidavit of Mr. George R. Sanderson, an attorney engaged as an assistant in the office of Mr. Guernsey. Mr. Sanderson's affidavit states, in effect, that preparation of the abstract was commenced by Mr. Guernsey about the 1st of January, 1898, and that he worked upon it from time to time, as his other engagements would permit, and completed a copy thereof for the printer on or about April 7, 1898; that since the taking of the appeal Mr. Guernsey had been engaged “in the preparation for submission and in the actual trial of many important cases in the United States supreme court, supreme court of the state of Iowa, United States circuit courts in Iowa and other states, and in the state courts of Iowa and other states, and has been frequently absent for several days at a time from his office in giving attention to said cases and other professional engagements.” The showing made by these affidavits and by others attached to the second application fully establishes the fact that the appeal was not taken for delay, but in good faith, because Mr. Guernsey believed that the judgment should be reversed for substantial reasons affecting the merits of the case.

One of the questions presented by the first application, although not controlling, in the view we take of the case, is important because of its frequent recurrence in motions to dismiss or affirm in this court. It is, what will excuse an appellant for failure, by reason of demands upon the time of his attorney, to have his cause ready for submission at the time fixed by the rules or order of the court? To do justice is a chief object of litigation, and when instituted it should be prosecuted with reasonable diligence. A party should not be permitted to delay it without satisfactory cause. It is our practice to make due allowance for unexpected and unavoidable demands upon the time of attorneys, whether due to business or sickness or other cause. But unnecessary delay in the prosecution of a cause may operate as a denial of justice, and the rights of all parties must be kept steadily in view. An attorney having charge of a case, in consequence of unforeseen demands upon his time and without fault on his part, may be unable to prepare his side of a cause for submission within the time prescribed by the rules; and in such cases, where we have the power to grant an extension of time, and injury to other parties will not result from such an extension, we do not hesitate to grant it if asked. But if the business of an attorney is so large that he has no reasonable ground for believing that he can submit his cases within the time prescribed by the rules, or if he knows that he cannot do so by reason of long-continued sickness, or other cause, it is his duty, if the adverse party will not consent to delay, to obtain the assistance of another attorney, if he be authorized to do so, or to inform his client of the emergency, in order that arrangements may be made for a timely submission. It does not appear from the affidavit of Mr. Sanderson that Mr. Guernsey had any unexpected demands upon his time which caused the delay in the completion of the abstract. So far as is shown, the business he was called upon to transact during the time in question, although seemingly large, was no more than he was ordinarily required to do.

2. The second application was made under section 90 of the rules of this court, for a waiver or modification of the rules respecting the time of filing abstracts. Section 90 provides that “when, by reason of peculiar circumstances, the foregoing rules relating to abstract, preparation and argument of causes, ought to be waived or modified in any case,” an order to that effect may be made by any judge of this court in vacation, upon due application and notice. The showing made in support of the second application is that the appeal was taken in good faith, and not for delay; that Mr. Guernsey was exceedingly busy with professional work, but intended to complete and file the abstract within the time required by the rules; that he knew that changes in the rules were made in the year 1897, and, in order to be certain to have the abstract filed in time, he requested Mr. Sanderson, at several different times, to examine the rules, and ascertain and inform him when they required that the abstract be filed; that the abstract was ready for the printer on the 7th day of April, when, in order to be certain of the date, he again asked Mr. Sanderson when the abstract should be filed under the new rules, and was informed by him that it was not necessary to file it before April 21st; that the abstract could have been printed and filed by April 9th, which would have been in time, but, in consequence of the information given by Mr. Sanderson, was not filed until April 14th, or less than 30 days before the next term of this court. It is further shown that Mr. Sanderson had practiced law for 18 years, and was regarded by Mr. Guernsey as competent and reliable; that Mr. Sanderson, in giving the information which causedthe delay in filing the abstract, had not observed section 28 of the rules, but had examined and relied upon section 20, which provides that, “at least thirty days before the day assigned for the hearing of a cause, the appellant shall serve upon each appellee, or his attorney,” a printed copy of the abstract, and that “the appellant shall also, fifteen days before the first day of the term for which the cause is to be docketed for trial, file with the clerk, twelve copies of said abstract.” The first day of the May term of this court commenced on the 10th day of May, and the causes from Polk county were assigned for hearing on the 23d day of the month. Therefore, if section 20 of the rules had alone governed the time of filing, Mr. Sanderson's statement to Mr. Guernsey would have been correct. But section 20 must be construed with section 28. If there were conflict between the two sections, so much of section 28 as is copied from section 4120 of the Code would necessarily prevail, for the reason that section 20 is not statutory. It is true that rules of this court in regard to the preparation and submission of causes have the force of laws duly enacted. State v. Day, 68 Iowa, 213, 26 N. W. 81. It is also true that section 4118 of the Code provides that “printed abstracts of the record shall be filed in accordance with rules established by the supreme court,” but the authority thus given must be so exercised as to conform to the statute. We do not think, however, that there is any conflict between sections 20 and 28 of the rules. Section 28 does not give to the appellant the right to delay the filing of an abstract until 30 days before the second term after the appeal was taken, but merely provides that if not filed 30 days before such term, and further time is not given, the appellee may have the appeal dismissed, or the judgment or order from which it was taken affirmed,...