Patterson v. Union Pac. R.R., 47932
| Decision Date | 13 November 1951 |
| Docket Number | No. 47932,47932 |
| Citation | 242 Iowa 1273,49 N.W.2d 820 |
| Parties | PATTERSON v. UNION PACIFIC R. R. |
| Court | Iowa Supreme Court |
Frank W. Davis, of Des Moines, for appellant.
Raymond Rosenberg and John P. McNerney, of Des Moines, for appellee.
On April 1, 1949, plaintiff filed action No. 54955 in the District Court of Polk County, Iowa, against the defendant, claiming damages arising from an accident on September 20, 1948, when plaintiff, then a brakeman for defendant railroad, was injured in defendant's freight yard in Burns, Oregon. On April 29, 1949, defendant filed a motion to strike and motion for more specific statement. No further action was taken in the matter by plaintiff or defendant.
The Iowa Rules of Civil Procedure took effect July 4, 1943, but prior thereto, on June 25, 1943, certain Rules of Practice of the Ninth Judicial District were made 'to conform to the (Iowa) Rules of Practice and Procedure.' Rule (e) of the Ninth Judicial District rules provides as follows:
'The judge of the assignment division, whenever it is deemed advisable, upon ten days notice published in the Daily Record, giving the number of such case, may dismiss any case on the law calendar for want of attention which has been upon the docket for three consecutive terms and not tried or otherwise disposed of unless good cause be shown why such action should not be taken.'
Another rule is rule (j) which provides that 'all motions in the law * * * division of the court filed on or before Thursday of each week shall be peremptorily heard on the succeeding Saturday morning * * * unless for good cause shown * * * they are continued.' And rule (k) provides that 'motions on the law docket shall on Friday of each week be assigned by the judges of the assignment division to the various law divisions, including the assignment division.'
On July 12, 1950, the following order was filed in the above case:
'In harmony with the provisions of the Rules of Practice of this Judicial District, and with notice heretofore published in the Des Moines Daily Record beginning June 26, 1950 and continuing for ten days thereafter 'It is hereby ordered that, at the cost of the respective plaintiffs, the following numbered Law cases are dismissed for want of attention, the same having been on the docket for three consecutive terms or more without having been tried or otherwise disposed of, to-wit:
* * *
* * *
'54955 Patterson v. U. P. Railroad.
Dated this 12th day of July, 1950.
Sg. Russell Jordan, Assignment Judge.'
On January 23, 1951, plaintiff filed his petition in the present action against the same defendant, based on the same cause of action. Defendant's answer set up the dismissal of case No. 54955 and alleged the dismissal operated as an adjudication on the merits pursuant to the provisions of Rule 217 of the Iowa Rules of Civil Procedure. After motion for separate adjudication of law points the trial court ruled the dismissal of cause No. 54955 'was without prejudice and was not an adjudication on the merits.' We granted defendant the right to appeal from the trial court's ruling in advance of trial.
I. The plaintiff in his brief states he is not complaining of the action of the trial court in dismissing his first action. He specifically states: 'appellee does not dispute the trial court's right to dismiss a cause for lack of attention.' The sole question in the case is whether or not the dismissal here operates as an adjudication on the merits. This question must be determined under the Iowa Rules of Civil Procedure.
Rule 215, Iowa Rules of Civil Procedure deals with voluntary dismissals, with and without the consent of court and provides the first such dismissal shall be without prejudice unless otherwise stated. The rule is obviously not applicable here as this dismissal was not voluntary.
Rule 216, Iowa Rules of Civil Procedure provides in part as follows: 'A party may move for dismissal of any action or claim against him, if the party asserting it fails to comply with these rules or any order of court.'
Rule 217, Iowa Rules of Civil Procedure provides as follows: 'All dismissals not governed by rule 215 or not for want of jurisdiction or improper venue, shall operate as adjudications on the merits unless they specify otherwise.'
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