Schmidt v. Abbott, 52586

CourtUnited States State Supreme Court of Iowa
Citation261 Iowa 886,156 N.W.2d 649
Decision Date06 February 1968
Docket NumberNo. 52586,52586
PartiesEdward A. SCHMIDT, Appellant, v. Rex L. ABBOTT, Appellee.

Page 649

156 N.W.2d 649
261 Iowa 886
Edward A. SCHMIDT, Appellant,
Rex L. ABBOTT, Appellee.
No. 52586.
Supreme Court of Iowa.
Feb. 6, 1968.

[261 Iowa 887] Wilson, Zohn & Yost, Des Moines, for appellant.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellee.

RAWLINGS, Justice.

Plaintiff's petition pursuant to rules 252--253, R.C.P., for reinstatement of his law action, previously dismissed under rule 215.1, R.C.P., was heard and relief denied by the trial court. He appeals. We reverse.

January 17, 1963, plaintiff filed a petition in Polk District Court seeking damages from defendant as result of an automobile collision. From that month through December of the same year he was intermittently hospitalized or confined to home because of heart ailment and amputation of a leg.

August 17, 1964, the Clerk of Polk District Court mailed what has come to be known as 'try or dismiss' notices to attorneys of record. See rule 215.1, R.C.P.

[261 Iowa 888] Counsel for plaintiff contend such notice as to plaintiff's case was never received, that had it been delivered a motion for continuance was in order and would have been timely filed.

November 4, 1964, the clerk dismissed plaintiff's case. Judgment for costs was

Page 650

accordingly entered. January 23, 1965, he received a communication from the clerk advising him as to entry of judgment. That information was immediately communicated to plaintiff's attorneys. They state this was the first notice received relative to dismissal of the action.

October 28, 1965, a petition was filed on plaintiff's behalf, (rules 252--253, R.C.P.), to vacate the dismissal order and judgment. Defendant resisted. Trial to the court resulted in an order dismissing the petition.

The appeal presents one broad question: Did the trial court err in dismissing plaintiff's petition to vacate the order and judgment entered in his case?

I. We deem it unnecessary to unduly belabor the issue presented.

Dealing with those portions of rule 215.1 here material, this court said in Talbot v. Talbot, 255 Iowa 337, 339--340, 122 N.W.2d 456, 458: 'When a cause has been noted for trial pursuant to rule 215.1 and due notice is served by the clerk, the trial court has no power to grant a continuance of the matter, except on application, notice and hearing to all parties, unless the same is by stipulation, and then only by an order made of record in the cause. (Authorities cited). * * *

'The rule then is applied to all cases at law or in equity, and places upon the clerk a duty as follows: 'All cases at law or in equity where The petition has been filed more than one year prior to July 15 of any year Shall be for trial at the next term commencing after August 15 of said year. The clerk shall prior to August 15 give notice to counsel of record as provided in rule 82 of: (a) the docket number, (b) the names of parties, (c) counsel appearing, (d) date of filing petition,...

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13 cases
  • State v. Lohr, 60994
    • United States
    • United States State Supreme Court of Iowa
    • May 17, 1978
    ...the idea of discretion. In that regard use of the word "shall" is ordinarily persuasive evidence. E. g., Schmidt v. Abbott, 261 Iowa 886, 889-890, 156 N.W.2d 649, 650-651 (1968); Code § 4.1(36)(a). But here we must decide whether the statute is mandatory or directory; i. e., should failure ......
  • Rath v. Sholty
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1972
    ...... 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 ......
  • Ritter v. Dagel, 52737
    • United States
    • United States State Supreme Court of Iowa
    • February 6, 1968
  • Sheer Const., Inc. v. W. Hodgman and Sons, Inc., 66741
    • United States
    • United States State Supreme Court of Iowa
    • November 24, 1982
    ...statute is obligatory, thus excluding the idea of discretion. See State v. Lohr, 266 N.W.2d 1, 5 (Iowa 1978); Schmidt v. Abbott, 261 Iowa 886, 890, 156 N.W.2d 649, 651 (1968); Iowa Code § 4.1(36)(a) (1981). In the circumstances of this case, we hold the language of Iowa Code section 535.3 (......
  • Request a trial to view additional results

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