Peterson v. Eitzen

Citation173 N.W.2d 848
Decision Date13 January 1970
Docket NumberNo. 53807,53807
PartiesLe Roy PETERSON d/b/a Stennett Elevator, Appellee, v. Ermal EITZEN, Appellant.
CourtUnited States State Supreme Court of Iowa

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 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.

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 of account. On November 21, 1968 general execution, aided by garnishment of defendant's bank account, was issued.

On November 25, 1968, defendant moved to set aside the judgment on grounds a prior judgment involving the same parties and subject matter had been entered March 28, 1968 and the nunc pro tunc order was void. This motion was overruled on February 17, 1969 on grounds such matters had been alleged in the Special Appearance and determined adversely to defendant.

On February 17, 1969, defendant appeared by new attorney and filed motion to vacate judgment under rule 252, R.C.P. It is the ruling on this motion that defendant appeals. Defendant relies on three of the six permissible grounds for vacation of judgment under rule 252; i.e., mistake or omission by the clerk, irregularity or fraud practiced in obtaining judgment and material evidence, newly discovered, which could not have been obtained with reasonable diligence for trial.

IV. The mistake of the clerk is due to failure of the clerk to notify defendant of the default judgment in accordance with rule 233, R.C.P. 3 The notice can only be for the purpose of allowing the defendant to timely move to set the judgment aside. Here defendant made timely motion so failure to receive notice of the default occasioned no prejudice. By its terms the rule does not affect the validity of the judgment. Except as to timing, it cannot affect the issues on motion to set the judgment aside under rule 236 or to vacate under rule 252. Those motions must rise or fall on their own merits.

VII. Defendant urges the judgment should be set aside because of irregularity or fraud practiced in obtaining the same. This argument has two facets. The first relates to the irregularity in procuring the nunc pro tunc order and has heretofore been decided. Whatever vitality this irregularity or fraud had was lost when the first appeal was abandoned. The second argument goes to failure to file plaintiff's affidavit under rule 232, R.C.P. at the time, or before, judgment by default was entered.

The record as certified to us shows the judgment was signed November 8, 1968 but not filed until November 14, 1968. An affidavit stating the facts alleged in the petition are true and the items set forth in the Bill of Particulars are a correct statement of account with defendant, was signed and sworn to on october 31, 1968 but not filed until November 14, 1968. Defendant argues this bare record indicates a violation of rule 232, R.C.P. The rule allows the clerk, where the sum is certain, or can be made certain on computation, to enter judgment 'upon affidavit that the amount is due'. This section was not utilized. Rule 232(b) provides for the judge to enter judgment under...

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    ...260 Iowa 884, 888, 151 N.W.2d 562, 565 (1967). Similarly irrelevant to the issue before us are the decisions in Peterson v. Eitzen, 173 N.W.2d 848, 849-50 (Iowa 1970) (court entered a specific written nunc pro tunc order, expressing its intent that the dismissal entered the day before was w......
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