Peterson v. Eitzen, No. 53807

• Court: United States State Supreme Court of Iowa
• Writing for the Court: BECKER
• Citation: 173 N.W.2d 848
• Decision Date: 13 January 1970
• Docket Number: No. 53807
• Parties: Le Roy PETERSON d/b/a Stennett Elevator, Appellee, v. Ermal EITZEN, Appellant.

Page 848

173 N.W.2d 848 Le Roy PETERSON d/b/a Stennett Elevator, Appellee,
v.
Ermal EITZEN, Appellant. No. 53807. Supreme Court of Iowa. Jan. 13, 1970.

Page 849

Davidson & Hemphill, Clarinda, for appellant.

Porter, Heithoff, Pratt & Reilly, Council Bluffs, for appellee.

BECKER, Justice.

Defendant filed a motion, under rule 252, Iowa Rules of Civil Procedure, to vacate a default judgment taken against him on November 8, 1968 and filed on November 14, 1968. The judgment was rendered on three divisions of the petition for $8607, $4360 and $1296 or a total of $14,263, plus interest from varying dates. After hearing on the motion, the trial court refused to vacate the judgment. Defendant appeals. We affirm.

I. The facts giving rise to the difficult situation now facing this court began well before the present action began. Two lawsuits involving the same parties and the same issues are involved.

The first action No. 15175, was initiated by service of original notice upon defendant on March 15, 1968. The notice stated a petition 'is' on file but no petition had, in fact, been filed. On March 28, 1968, defendant's then attorney filed motion to dismiss No. 15175 under rule 55, R.C.P. and attached the original notice to the petition. Order of dismissal was duly entered on March 28, 1968.

In Credit Industrial Corp. v. Miller, 255 Iowa 1022, 125 N.W.2d 142, we held a dismissal under rule 55, R.C.P., which does not provide the dismissal is not on the merits, constitutes an adjudication on the merits. Such was the situation when the dismissal under rule 55 was signed by the court.

However, on the following day plaintiff's attorney presented a nunc pro tunc order which was signed by the judge without notice to defendant or hearing thereon. The order, filed April 1, 1968, provided the dismissal signed the day before was without prejudice. ¹ On April 3, 1968, defendant challenged this nunc pro tunc order by notice of appeal to this court. But defendant did no more to process his appeal and it was dismissed. Procedendo dismissing the appeal reached the district court September 10, 1968.

As will be noted, the trial court subsequently treated the March 28, 1968 dismissal and the nunc pro tunc addition as a valid, binding order which did not make the dismissal res adjudicata and allowed plaintiff to start a new action.

II. Defendant does not attack the validity of judgment of dismissal, but the nunc pro tunc portion thereof is questioned. We first consider whether the trial court, in the first instance, had jurisdiction of the

Page 850

parties and the subject matter to enter the nunc pro tunc order. We hold it had such jurisdiction.

The initial dismissal order under rule 55, R.C.P., was clearly within the jurisdiction of the court. Sioux County v. Kosters, 194 Iowa 1300, 191 N.W. 315. The rules governing power of the court to enter nunc pro tunc orders after it has acquired initial jurisdiction of the parties and subject matter are well established in concannon v. Blackman, 232 Iowa 722, 728, 6 N.W.2d 116, 119: 'The court has broad power, after proper notice to interested parties, to change, modify or amend entries upon its records made at the same term. Code, section 10801. Ryan v. Phoenix Ins. Co., 204 Iowa 655, 657, 215 N.W. 749, and cases cited; Miller v. Bryson, 171 Iowa 354, 361, 152 N.W. 568. This power was recognized at common law and inheres in the court aside from the statute. Hallam v. Finch, 197 Iowa 224, 226, 195 N.W. 352; Todhunter v. DeGraff, 164 Iowa 567, 575, 146 N.W. 66; 31 Am.Jur. 272, sec. 727; 34 C.J. 207, sec. 436.'

Since we have abolished terms of court in this state, the broad statutory power to act 'within the term' has been transferred to like power to act within 60 days. ²

We need not concern ourselves with the power of the court to enter nunc pro tunc after 60 days but see recent discussions in Headley v. Headley, Iowa, 172 N.W.2d 104 (opinion filed November 12, 1969) and Ash v. Ash, Iowa, 172 N.W.2d 801 (opinion filed December 9, 1969).

At this point we note Sido v. Sido, 242 Iowa 950, 957, 48 N.W.2d 799, 803: '* * * No notice is required of any correction or change in a judgment if made at the term (now before 60 days) and before recording. * * *.' We conclude, on the record before us, the court had jurisdiction to enter the nunc pro tunc order. Whether such order might have been set aside upon direct appeal for nonjurisdictional reasons does not concern us because the appeal was not prosecuted.

III. When this court issued procedendo dismissing the appeal in the first action, the judgment of the trial court stood as a verity, 'as if it never appealed from.' In re Estate of Lyman, 227 Iowa 1191, 1194, 290 N.W. 537. The judgment of the trial court is res adjudicata until set aside, modified or reversed. Shaw v. Addison, 236 Iowa 720, 726, 18 N.W.2d 796.

IV. Of course, if the judgment is void for want of jurisdiction of the parties or subject matter, it is subject to collateral attack and will be disregarded. Halverson v. Hageman, 249 Iowa 1381, 92 N.W.2d 569. We have already held the court had the requisite jurisdiction.

A judgment may also be held to be void because of extrinsic fraud in procurement. This is usually done by direct attack in the same action or by equity action to set the judgment aside. The latter action has also been characterized as a direct attack. City of Chariton v. J. C. Blunk Constr. Co., 253 Iowa 805, 112 N.W.2d 829. But we are considering a motion under rule 252, R.C.P. This is not a direct attack on the judgment. It is a collateral attack on the nunc pro tunc order and falls within the definition of collateral attack found in Reimers v. McElree, 238 Iowa 791, 795, 28 N.W.2d 569, 571: "* * * an attack made by or in an action or proceeding that has an independent purpose other than the impeaching or overturning of the judgment, although impeaching or overturning the judgment may be necessary to the success of the action." The nunc pro tunc order was therefore not subject to collateral attack and the trial court was correct in treating it as a verity.

Page 851

V. It has been necessary to review the foregoing principles and the status of the nunc pro tunc order in No. 15175 in order to adequately discuss what happened in this subsequent case No. 15205, involving the same parties, the same issues and same subject matter.

This case was commenced by service of original notice on July 16, 1968 (some 109 days after notice of appeal in the former case had been filed but while the appeal was still pending). Notice was served by substituted service on defendant's wife. On August 2, 1968 defendant filed special appearance alleging the same cause, under former action 15175, was on appeal to the Iowa Supreme Court. On September 26, 1968 after the appeal of the former case had been dismissed, the trial court overruled the special appearance in the instant case. The court gave defendant 15 days to answer.

No answer or responsive pleading was filed and on November 8, 1968 a default decree was presented to the court and signed by it. This decree was filed November 14, 1968, together with plaintiff's affidavit under rule 232, R.C.P. stating the items in the Bill of Particulars are a correct statement...