Petit v. Ervin Clark Const. Co.

• Citation: 49 N.W.2d 508,243 Iowa 118
• Decision Date: 16 October 1951
• Docket Number: No. 47902,47902
• Parties: PETIT v. ERVIN CLARK CONST. CO. et al.
• Court: United States State Supreme Court of Iowa

Page 508

49 N.W.2d 508

243 Iowa 118

PETIT v. ERVIN CLARK CONST. CO. et al.

No. 47902.

Supreme Court of Iowa.

Oct. 16, 1951.

Rehearing Denied Dec. 14, 1951.

Welch & Welch, of Logan, John D. Beardsley, of Onawa, and L. V. Gilchrist, of Denison, for appellants.

Whicher & Davis, of Sioux City, for appellee.

SMITH, Justice.

In its inception the case was quite simple but the procedural record became long and complicated, ending with a summary judgment for plaintiff against both defendants from which they appeal.

Plaintiff filed his petition in equity May 13, 1950. It alleged: that defendant Clark Construction Inc. (herein briefly called Clark), having been awarded a contract by defendant County for improving, surfacing and resurfacing certain highways, orally engaged plaintiff to supply labor and the use of certain equipment to aid in the performance of said work; that it was first agreed they would divide the net profits equally after paying to each an amount to be later agreed on for the use of equipment each owned; that pursuant thereto plaintiff worked and furnished equipment on various itemized projects; that on or about February 15, 1950, they amended their original contract and, based upon an accounting by Clark, it was orally agreed defendant Clark owed plaintiff the sum of $3785.09; and that thereafter Clark paid plaintiff to apply thereon the sum of $1500, leaving a balance due of $2,285.09.

It was further alleged plaintiff, on or about February 24, 1950, filed with the auditor of defendant county a statement for lien against funds due Clark on said projects in the said sum of $3785.09 and later (May 6, 1950) filed an amendment thereto reducing it by the sum of $1500 and making some correction in enumeration of the various highway projects involved.

Original notices were served May 15. And on June 13, no pleading or motion having been filed by defendants, plaintiff moved for default judgment. The next day defendant County moved to dismiss plaintiff's petition claiming it had finally accepted the work before plaintiff filed his claim with the county auditor and that plaintiff had failed to bring suit within sixty days thereafter as required by section 573.16, Iowa Code 1950, I.C.A.

On June 19, 1950, defendant Clark filed its separate answer admitting (in paragraph 2) that it had a contract with defendant County 'for a certain road and highway improvement,' and 'that it had arrangements with plaintiff in reference thereto' but stating 'that plaintiff has received all sums due him from this answering defendant and that it is not, at this time, obligated to him in any amount whatsoever.' There was a general blanket denial of the claim (including the alleged February 15 agreement as to the amount due) and there were affirmative allegations (paragraphs 4 and 5) that plaintiff's filing with the county auditor and subsequent commencement of suit were not timely and denial that plaintiff had any statutory lien 'on the funds being held by Monona County.'

On June 29 plaintiff ('not waiving any of its rights under the Motion for default judgment * * * not ruled upon and subject to the ruling * * *') moved to strike the allegations of paragraphs 4 and 5 (as irrelevant, incompetent and immaterial); and for more specific statement as to the allegations of paragraph 2 'by setting forth what road and highway improvements mentioned in paragraph 2 of said answer said defendant admits the plaintiff worked upon, the terms of the contract * * * and how much it has paid * * *.'

On July 13 the court ruled on the accumulation of motions overruling plaintiff's motion for default judgment, defendant County's motion to dismiss petition and plaintiff's motion to strike from defendant's answer, but sustaining plaintiff's motion to make said answer more specific. And on July 14 defendant County filed its answer denying generally on information and belief most of the allegations of the petition.

So the matter rested until August 4 when plaintiff again moved for default judgment as against defendant Clark on the ground said defendant had failed to comply with the order to make its answer more specific; and in the alternative asked the court 'to determine as adjudicated in favor of the plaintiff the matters pled in paragraph 2 of the answer * * * as provided in Rule 86 of the Iowa Rules of Civil Procedure [58 I.C.A.].' This motion was supported by affidavit of plaintiff's attorney setting out a telephone conversation with defendant Clark's attorney in which the latter said he had not complied with the ruling 'because he had been unable to hear from his client with the information he needed in order to comply.'

On the same day (August 4) plaintiff filed reply to defendant Clark's answer ('subject to the ruling * * * on plaintiff's motion for default judgment filed concurrently herein'). Then on August 10 defendant Clark amended its answer 'in accordance with the ruling of the court.' In this answer he disclaimed information or belief as to the specific projects plaintiff had worked on, 'this matter being peculiarly within the knowledge of the plaintiff.'

Thereupon (August 12) plaintiff amended his motion for default judgment, alleging that the amendment to the Clark answer was not in compliance with the order to make more specific. And on August 15, 1950, plaintiff filed Motion for Summary Judgment against both defendants 'under Rule 237 to 240 inclusive of the Iowa Rules of Civil Procedure.' This motion was supported by plaintiff's affidavit: 'That I have personal knowledge of the facts * * *. That there is due me * * * the sum of $2,285.09 * * *. That it is my belief no defense exists against my claim.'

A hearing on both motions was held September 18, 1950, but no ruling until January 13, 1951, when the court sustained both and entered judgment against both defendants for $2285.09, with interest, providing however that recovery from defendant County should not exceed $2523.86, 'being the amount now held by it for the said defendant Clark.'

The court in its ruling gave a resume of the various procedural moves preceding the filing of the motions, expressed recognition of the 'need for extreme liberality in dealing with defaults' but added: 'From statements made to the Court by counsel and from the whole record * * * the Court finds that the defendant (Clark) was inexcusably negligent in failing to cooperate with its counsel, and in disregarding his request for information necessary for proper answer, and we hold that plaintiff should no longer be denied his adjudication through the negligence and dilatory tactics of the defendant itself.'

Directing its attention to the request for summary judgment the court, after stating the motion had been fully argued and that no controverting affidavits were filed by either defendant (as permitted by Rule 238, Iowa Rules of Civil Procedure), found defendant County was indebted to defendant Clark in the sum of $2523.86 'upon certain road construction and maintenance contracts * * * withheld by it as required by law at the time plaintiff filed a lien against the fund' and concluded: 'after receiving the evidence submitted, heard arguments of counsel, considered the records and files of this case, the Court finds that the plaintiff's motion should be and it is hereby sustained.'

Ten days after submission of the motion at the September 18 hearing, defendant Clark applied for an extension of time 'to file resistance to motion for summary judgment.' The application was supported by its attorney's affidavit which stated in effect; that he had been on a ten day vacation; that on returning August 21, 1950, he found an accumulation of mail at the post office which he took to his home and from there (on August 22) to his office; that in some manner the envelope containing Motion for Summary Judgment 'got mixed up with some magazines' and was found by his daughter and called to his attention ('I believe') about September 13 or 14; that both motions were presented September 18; 'and I asked for time in which to state my position. This affidavit and the application to which it is attached is for that purpose.'

No ruling on this belated application appears though the judgment was not rendered until some four months after the attorney 'believed' he first learned of the motion for summary judgment and during that time no attempt was made by him to 'state' his 'position.'

Shortly after (January 22, 1951) the judgment defendant Clark filed motion for new trial and on February 9, 1951, an 'Amendment to Answer and Counterclaim' and a 'Motion to Set Aside and Vacate Ruling on Motion and Judgment filed January 13, 1951.' These motions were overruled February 10 and notice of appeal given the same day by defendants. Apparently the Amendment to Answer and Counterclaim, filed almost a month after final judgment and one day before notice of appeal, was given no consideration by anyone. It may be significant that defendants filed no timely pleading or motion during the entire proceedings except the motion for new trial.

The motion for new trial urges that: the court abused its discretion in various ways; no findings of fact were made as required by Rule 179, I.R.C.P.; no evidence was submitted; the case was at issue; defendant never received notice the cause was assigned for trial; and the judgment is unauthorized by Rules 237-240, I.R.C.P.

Twelve numbered errors are assigned and they are argued in four divisions of defendants' brief. It will be unnecessary however to consider them all in detail.

I. Much of the Record here is immaterial to the question of the validity of the summary judgment. We have summarized it all for whatever value it may have as background.

Rules 237 and 238, R.C.P. seem to provide a procedure heretofore unknown to Iowa practice except in certain cases, enumerated in section 11608, Iowa Code, 1939. These were principally cases involving alleged secondary liability after...