Rath v. Sholty, 55024
| Court | United States State Supreme Court of Iowa |
| Writing for the Court | REYNOLDSON; All Justices concur, except HARRIS |
| Citation | 199 N.W.2d 333 |
| Parties | Maudie E. RATH, Appellant, v. Arthur SHOLTY, Appellee. |
| Docket Number | No. 55024,55024 |
| Decision Date | 29 June 1972 |
Page 333
v.
Arthur SHOLTY, Appellee.
Page 334
Mack, Hansen & Gadd, Storm Lake, for appellant.
Hamilton, Connell & Redenbaugh, Storm Lake, for appellee.
REYNOLDSON, Justice.
Plaintiff appeals from trial court's denial of his application to reinstate a case dismissed under rule 215.1, Rules of Civil Procedure. We reverse and remand.
Page 335
March 13, 1969, plaintiff brought action for $125,000 damages claimed to have resulted from an auto collision which occurred December 1, 1967. On March 25, 1970, plaintiff's first attorney filed a certificate of readiness. Overruling defendant's objections to this certificate, the court assigned the case to be tried June 2, 1970. Shortly before trial date, plaintiff's present counsel was additionally retained. That firm filed motion to continue the cause. The motion was sustained, subject to the local rule the case would not be reassigned for 120 days. However, the case remained on the ready docket during that period.
August 3, 1970, the try-or-dismiss notice under rule 215.1 was forwarded. When the 120 day period terminated, on September 27, 1970, depositions were completed and the case was ready for trial. Judge Braginton was presiding during the fourth term in Ida County. From about October 2 to December 11 or 18, 1970, plaintiff's first-retained counsel, then still appearing in the case, had four separate conversations with Judge Braginton, seeking assignment of this cause. On each occasion he was told by the judge 'he would let me know.' Plaintiff's counsel did not file a motion or stipulation for continuance and no order of continuance was obtained; consequently, the cause was routinely dismissed under rule 215.1 on January 6, 1971.
On January 11, 1971, plaintiff timely filed application to set aside the dismissal and reinstate the case. Following a hearing, trial court denied the application because, 'there has been no credible showing that such dismissal was the result of oversight, mistake or other reasonable cause.'
Trial court's language was, of course, drawn from the 1965 amendment (61st General Assembly Chapter 487, Section 2) to rule 215.1, R.C.P., which amendment added as a last paragraph to the rule:
'The trial court May, in its Discretion, and Shall upon a showing that such dismissal was the result of Oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed. Application for such reinstatement, setting forth the grounds therefor, shall be filed within six months from the date of dismissal.' (Emphasis added.)
It is apparent this amendment was designed to mitigate the harsh results mandated by the inflexible language of the rule's dismissal provisions. See Windus v. Great Plains Gas, 255 Iowa 587, 122 N.W.2d 901 (1963); Talbot v. Talbot, 255 Iowa 337, 122 N.W.2d 456 (1963); Windus v. Great Plains Gas, 254 Iowa 114, 116 N.W.2d 410 (1962). One commentator observed the amendment change was a return in Iowa to the policy of trial on the merits. Comment, 'Procedure--Dismissal for Want of Prosecution--Discretion of Trial Court,' 51 Iowa L.Rev. 496 (1966). That concept was, of course, always before the court in the application of rule 236, R.C.P. Handy v. Handy, 250 Iowa 879, 96 N.W.2d 922 (1959); Newell v. Tweed, 241 Iowa 90, 40 N.W.2d 20 (1949).
In this case of first impression, construing the rule amendment, we are concerned not only with the power of the court to deny or grant reinstatement of a dismissed cause, but also with our scope of review of trial court's ruling. Apparently the legislature, by this amendment, intended to grant trial court discretion comparable to that extended by rule 236 (setting aside default and judgment thereon) and rule 252 (vacating final judgment or order). The clause, 'may, in its discretion' permits no other meaning. In Johnson v. Lindquist, 184 N.W.2d 681 (Iowa 1971) we not only held trial court had discretion, but was in error in failing to exercise it.
However, the legislature plainly dictated a nondiscretionary result upon a showing of 'oversight, mistake or other reasonable cause.' In that event, under the language employed, the court Shall reinstate. In considering use of the word 'shall' in the dismissal provisions of this rule we said in Schmidt v. Abbott, 261 Iowa 886, 890, 156
Page 336
N.W.2d 649, 651 (1968), 'when addressed to a public official the word 'shall' is ordinarily mandatory, excluding the...To continue reading
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Nichols v. Schweitzer, 89-1507
...are clearly unreasonable. Sheer Constr., Inc. v. W. Hodgman & Sons, Inc., 326 N.W.2d 328, 334 (Iowa 1982); see also Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa Having allowed the extra two strikes to Schweitzers, the court directed that the strikes be exercised first by the Wests, then by the......
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State v. Valin, 05-0781.
...omitted). In short, there is an abuse of discretion when "there is no support for the decision in the ... evidence." Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa III. Applicable Law. We have noted that "[t]he legislature has given the courts broad, but not unlimited, authority in establishing ......
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Gold Crown Properties, Inc. v. Iowa Dist. Court for Pottawattamie County, 84-165
...dismissals is remedial, intended to be liberally construed and applied to the end that meritorious trials may be had. Rath v. Sholty, 199 N.W.2d 333, 337 (Iowa 1972) (quoting 27 C.J.S. Dismissal & Nonsuit § 78, at 491 (1959)). Reinstatement is mandatory upon a showing of oversight, mistake,......
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Glenn v. Farmland Foods, Inc., 83-451
...can show that his dismissal resulted from "oversight, mistake or other reasonable cause," Iowa R.Civ.P. 215.1. See Rath v. Sholty, 199 N.W.2d 333, 335 (Iowa 1972). In Rath, we noted that we are bound by trial court's findings of fact in reviewing its refusal to reinstate a case, but we are ......
-
Nichols v. Schweitzer, No. 89-1507
...are clearly unreasonable. Sheer Constr., Inc. v. W. Hodgman & Sons, Inc., 326 N.W.2d 328, 334 (Iowa 1982); see also Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa Having allowed the extra two strikes to Schweitzers, the court directed that the strikes be exercised first by the Wests, then by the......
-
State v. Valin, No. 05-0781.
...omitted). In short, there is an abuse of discretion when "there is no support for the decision in the ... evidence." Rath v. Sholty, 199 N.W.2d 333, 336 (Iowa III. Applicable Law. We have noted that "[t]he legislature has given the courts broad, but not unlimited, authority in establishing ......
-
Gold Crown Properties, Inc. v. Iowa Dist. Court for Pottawattamie County, No. 84-165
...dismissals is remedial, intended to be liberally construed and applied to the end that meritorious trials may be had. Rath v. Sholty, 199 N.W.2d 333, 337 (Iowa 1972) (quoting 27 C.J.S. Dismissal & Nonsuit § 78, at 491 (1959)). Reinstatement is mandatory upon a showing of oversight, mistake,......
-
Glenn v. Farmland Foods, Inc., No. 83-451
...can show that his dismissal resulted from "oversight, mistake or other reasonable cause," Iowa R.Civ.P. 215.1. See Rath v. Sholty, 199 N.W.2d 333, 335 (Iowa 1972). In Rath, we noted that we are bound by trial court's findings of fact in reviewing its refusal to reinstate a case, but we are ......