Pride v. Kittrell
| Decision Date | 13 November 1934 |
| Docket Number | No. 42586.,42586. |
| Citation | 218 Iowa 1247,257 N.W. 204 |
| Parties | PRIDE v. KITTRELL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; R. W. Hasner, Judge.
Appeal by plaintiff from an order overruling an application to reinstate a cause dismissed for want of prosecution.
Affirmed.
Bernard Stenzel, of Waterloo, for appellant.
Pike, Sias, Zimmerman & Butler, of Waterloo, for appellee.
An original petition in this case was filed on February 26, 1932, in the district court of Black Hawk county, Iowa, attempting to state a cause of action for damages based upon alleged slanderous statements alleged to have been made by the defendant of and concerning the plaintiff. Most of this petition was eliminated by the court on motions of the defendant to strike and for more specific statement. In March, 1933, the plaintiff having secured new counsel, an amended and substituted petition was filed. This second pleading was attacked by motions to strike and to make more specific, which motions were in most part sustained, and in March, 1933, a second amended and substituted petition was filed by the plaintiff. This pleading was also attacked by motions, and in response to the court's rulings thereon a third amended and substituted petition was filed in July, 1933. To the last pleading of the plaintiff the defendant filed answer generally denying the allegations of plaintiff's third amended and substituted petition. A trial notice was filed for the September, 1933, term of court, and the cause was assigned for trial for the 9th day of October, 1933. There was a reassignment of the case, and the time for trial was fixed for October 16, 1933. The case was reached for trial on the 16th day of October, and, neither the plaintiff nor her counsel being present and there being no motion for continuance on file, the case was dismissed by the court for want of prosecution, and judgment was entered against the plaintiff for costs. Some time later, but during the same term of court, the plaintiff filed a motion supported by affidavit to have the cause reinstated and continued over the term. This motion was overruled, and the plaintiff has appealed from such ruling.
It appears that sixteen days before the beginning of the September term of court in Black Hawk county appellant's counsel was severely injured. He was sufficiently recovered however, to be at his office on September 18th, the first day of the September term of court. It appears that he requested of counsel for the defendant that the case be set for trial two or three weeks ahead in order that he might recover from his injury, and in compliance with this request the case was assigned for trial on October 9th. Prior to October 9th, one of the attorneys for the defendant advised the plaintiff's counsel that the defendant was insisting upon the case being tried and disposed of at the present term of court, and that they could not consent to its being continued over the term, but they were willing to allow the case to be placed at the foot of the trial assignment, and the date of trial was accordingly changed to October 16th. Plaintiff's counsel was advised of this change and also advised that the case must be disposed of at that time. It appears that the assignment of cases for trial with any changes made thereon is kept posted upon a bulletin board in the attorneys' room at the courthouse; that counsel for plaintiff was in his office, and at the courthouse from time to time up to the 16th day of October, and was at the courthouse on the morning of the 16th of October, about 9 o'clock. His office is only a block away from the courthouse, is equipped with a telephone, and has an attendant most of the time. No motion for a continuance of the cause was filed, although both the plaintiff and her counsel state in affidavits filed in support of the motion for reinstatement that they were trying to obtain the services of some other attorney to appear in the case, but were not successful in doing so.
[1] Appellant's assignment of errors does not conform to the rules of this court. There is no statement in appellant's brief and argument as to propositions relied upon for reversal, and there are no citations supporting any brief point made. However, we will consider the matters raised upon appeal on their merits.
[2] The first three so-called errors relied upon for reversal allege error in the court's rulings on motions to make the various petitions more specific and to strike certain portions thereof, but a sufficient answer to these assignments even though they are properly made, is that the plaintiff met all such rulings by pleading over, and that at the time the case was called for trial the case was at issue. And should it be reversed on this appeal, on other assignments of error, it would go back to the district...
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