Ryan v. Phœnix Ins. Co. of Hartford, Conn.

Citation215 N.W. 749,204 Iowa 655
Decision Date25 October 1927
Docket NumberNo. 38318.,38318.
PartiesRYAN v. PHŒNIX INS. CO. OF HARTFORD, CONN.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Marion County; W. G. Vander Ploeg, Judge.

The nature of the action and the material facts are fully stated in the opinion. The judgment appealed from is affirmed. Affirmed.Tinley, Mitchell, Ross & Mitchell, of Council Bluffs, and Johnson & Teter, of Knoxville, for appellant.

D. Cole McMartin, of Des Moines, and Hays, Hays & Heer, of Knoxville, for appellee.

STEVENS, J.

This is an appeal from an order refusing to vacate a judgment of voluntary nonsuit and to reinstate the cause for trial. The petition was filed in the district court of Marion county on April 27, 1925, and the cause of action vountarily dismissed by the plaintiff, appellant herein, on February 16, 1926. A few days later and during the same term of court, appellant filed a motion supported by affidavit and containing a showing of merits to set aside and vacate the order of dismissal and to reinstate the cause for trial. After a hearing upon the motion, at which counsel for appellee were present, it was overruled. At the time the motion was filed and overruled, the order of dismissal had been entered upon the court's calendar only. The affidavit of counsel for appellant was supplemented by an extended statement of the court, from which we gather that it was found that the court was without jurisdiction to reinstate the cause of action.

It is contended by appellee that not only was the court without jurisdiction to vacate the nonsuit and to reinstate the case, but that if it be held otherwise by this court the showing made by appellant was wholly insufficient to justify the sustaining of the motion if an order to that effect had been entered.

[1][2] The right of the plaintiff to dismiss his cause of action at any time before the final submission thereof to the jury, or to the court when the trial is without a jury, is conferred by section 11562, Code 1924, and is absolute. Ordinarily, the effect of such dismissal is final and terminates the jurisdiction of the court thereof. Kiser v. Crawford, 182 Iowa, 1249, 166 N. W. 577; C., R. I. & P. Ry. Co. v. Dey, 76 Iowa, 278, 41 N. W. 17;Marsh v. Graham, 6 Iowa, 76.

[3] The exception to this rule, so far as declared by this court, arises when the order of dismissal was by counsel without authority to do so. Rhutasel v. Rule, 97 Iowa, 20, 65 N. W. 1013;First National Bank v. Bourdelais, 109 Iowa, 497, 80 N. W. 553;Lingenfelter Bros. v. Bowman, 156 Iowa, 649, 137 N. W. 946;Nothem v. Vonderharr, 189 Iowa, 43, 175 N. W. 967.

This court has also held that a dismissal filed with the clerk may not be withdrawn by a cross-petitioner in a divorce action, and that a subsequent original notice based upon a cross-petition is ineffectual to revive the action. Luse v. Luse, 144 Iowa, 396, 122 N. W. 970;Matthews v. Quaintance, 200 Iowa, 736, 205 N. W. 361;Mahaska County State Bank v. Cruzen (Iowa) 206 N. W. 90.

[4] Section 10801, Code 1924, provides that the record of the court is under its control and may be amended or any entry therein expunged at any time during the term at which it is made or before it is signed by the judge. Under this section, the court exercises broad authority and discretion in passing upon motions to modify, amend, or expunge entries upon its record made during the term for good cause shown, and may, under some circumstances, act on its own motion. Comes v. Comes, 190 Iowa, 547, 178 N. W. 403;McConnell v. Avey, 117 Iowa, 282, 90 N. W. 604;Wolmerstadt v. Jacobs, 61 Iowa, 372, 16 N. W. 217;Loos v. Callender Savings Bank, 174 Iowa, 577, 156 N. W. 712;Hallam v. Finch, 197 Iowa, 224, 195 N. W. 352;Streeter v. Gleason, 120 Iowa, 703, 95 N. W. 242;Cooper v. Disbrow, 106 Iowa, 550, 76 N. W. 1013.

For reasons hereafter stated, we deem it unnecessary to pass upon the jurisdictional question discussed by counsel. Without doing so, we desire, however, to refer briefly to the rule in a few other jurisdictions.

It was held by the Supreme Court of Illinois in Weisguth v. Supreme Tribe of Ben Hur, 272 Ill. 541, 112 N. E. 350, that the court has no power to reinstate a cause voluntarily dismissed unless, at the time of such dismissal, leave is given by the court to the plaintiff to do so. In the course of the opinion, the court said:

“If a plaintiff by his deliberate and voluntary act secures the dismissal of his suit, he must be held to have anticipated the effect and necessary results of this action, and should not be restored to the position and the rights which he voluntarily abandoned. Having taken a nonsuit, his only recourse is to begin his action anew.”

The Supreme Court of Alabama in Porter v. Watkins, 196 Ala. 333, 71 So. 687, held:

“While it is true that a discontinuance puts an end to the cause, yet, where a mere order or announcement has been made to that end, such order or suggestion may be changed or corrected during the term of the court at which it was originally made; and certainly so, where, as in this case, the two orders were practically simultaneous. Curtis v. Gaines, 46 Ala. 459.”

The Kentucky Court of Appeals in Wilson's Adm'r v. De Loach, 123 Ky. 393, 96 S. W. 514, held that the reservation of a right to reinstate, made at the time of the nonsuit, gave the court jurisdiction to reinstate the case on motion.

It is intimated by the Texas Civil Court of Appeals in Sanchez v. A., T. & S. F. Ry. Co., 90 S. W. 689, that if the voluntary dismissal was entered because of a statement by the trial judge that he intended to direct a verdict in the case, if such direction would have been erroneous, the court may, upon proper application, order a reinstatement thereof.

In Anderson v. Shields, 51 Wash. 463, 99 P. 24, and Palace Hardware Co. v. Smith, 134 Cal. 381, 66 P. 474, a statutory right of reinstatement was held to exist in these respective states. See, also, Boothe v. Armstrong, 80 Conn. 218, 67 A. 484. Other cases may be found in which the right to reinstatement of a voluntary nonsuit is upheld where the dismissal was the result of unavoidable casualty, accident, or mistake, or because of an erroneous ruling of the court which had the effect, if permitted to stand, to defeat justice. In this connection, see Palace Hardware Co. v. Smith, supra; Anderson v. Shields, supra; Sanchez v. A., T. & S. F. Ry. Co., supra; Boothe v. Armstrong, supra.

In any proceeding under section 10801 for the modification or vacation of an entry on the record under the control of the court, at the term at which same was entered, and also under section 11589 of the Code to set aside a default, a satisfactory showing of diligence on the part of the applicant is indispensable. Without it, the application will be overruled. Norman v. Iowa Cent. R. Co., 149 Iowa, 246, 128 N. W. 349;Comes v. Comes, 190 Iowa, 547, 178 N. W. 403;Hawthorne v. Smith, 197 Iowa, 1306, 197 N. W. 9;Iowa Cord Tire Co. v. Babbitt, 195 Iowa, 922, 192 N. W. 431;State v. Elgin, 11 Iowa, 216;Yocum v. Taylor, 179 Iowa, 695, 161 N. W. 636;Reilley v. Kinkead, 181 Iowa, 615, 165 N. W. 80;Mally v Roberts, 167 Iowa, 523, 149 N. W. 630;Banks v. Taft Co., 188 Iowa, 559, 174 N. W. 576, and cases cited, supra.

The facts as disclosed by the affidavit of counsel and the voluntary statement of the court, which is incorporated in the abstract, are as follows: Appellant employed an attorney residing in Omaha to commence her cause of action, which was to recover a loss under a policy of fire insurance, and instructed him to employ local counsel to assist him. No local counsel was employed, however, until the day the jury was impaneled. The February, 1926, term of court convened in Marion county February 2d. On the afternoon of the following day an assignment of jury cases was made by the court for trial. The present action, having been noticed for trial, was assigned for hearing on February 8th. The court thereupon directed the clerk to wire the Omaha attorney of the assignment. A few days later, the trial judge received a letter from such attorney requesting that the case go to the foot of the assignment. By consent of counsel, this arrangement was made, and in due time appellant's attorney was again notified that the cause would be heard February 15th. On that date, counsel appeared for appellant and employed the firm of Johnson & Teeter, of Knoxville, to assist him in the trial of the case. During the afternoon, a jury was impaneled, but an adjournment was taken until 9 o'clock the next morning. While the jury was being impaneled, the court discovered that the petition was defective in some important particulars and suggested an amendment thereto. At the same time, the court informed counsel that his reporter was absent, and that he would have to procure his return from Guthrie Center to report the trial. It was not certain at this time that the petition would be amended, and the court requested counsel to advise him as soon as possible if the case was to be tried. Later in the evening, the trial judge called Mr. Johnson and suggested that he be advised as soon as possible whether the trial would proceed, again informing him that it was necessary to notify the reporter at Guthrie Center. In the meantime, Johnson...

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