Schroedl v. McTague

Decision Date20 September 1966
Docket NumberNo. 52214,52214
Citation145 N.W.2d 48,259 Iowa 627
PartiesTony SCHROEDL and Catherine Schroedl, Appellants, v. Leo V. McTAGUE and Frances McTague, Appellees.
CourtIowa Supreme Court

James Furey, Carroll, for appellants.

Page & Nash, Denison, for appellees.

LARSON, Justice.

This is the second appeal in this matter. The first trial resulted in a directed verdict for defendants. We reversed and remanded the case when it appeared certain material evidence of admissions on the question of revival of an otherwise barred debt, due to limitations, was rejected by the court. See Schroedl v. McTague, 256 Iowa 772, 129 N.W.2d 19, filed June 9, 1964. We tried in that opinion to give some helpful directions to the trial court on probable issues in the next trial.

In any event on July 22, 1964, plaintiffs filed a motion for summary judgment. This motion was overruled and the cause again proceeded to trial before a jury. On September 2, 1965, a verdict for plaintiffs was returned in the sum of $16,730.11. Thereafter defendants' motion for judgment notwithstanding the verdict was overruled. However, their motion for a new trial was granted, and plaintiffs appeal.

Plaintiffs urge three principal grounds for reversal: (1) that the court erred in overruling their motion for directed verdict, for judgment on the pleadings, and for summary judgment; (2) that it erred in sustaining defendants' motion for a new trial; and (3) that it erred in permitting defendant Leo V. McTague to testify that certain tax return entries referred to 'dividends.' Appellees seek to sustain the grant of a new trial on the grounds (1) that they were unduly restricted in their effort to offer testimony which would show certain income tax return entries did not relate to the note being sued on, and (2) that on the whole they did not have a fair trial.

This action was commenced against defendants on October 5, 1961, seeking judgment on a promissory note alleged to have been signed and delivered to plaintiffs on January 25, 1947. This one-year note was in the principal sum of $10,000 with several years accrued interest. The defendants' answer, among other things, raised the statute of limitations, section 614.1(6), Code 1962. In their petition as amended, the plaintiffs seek to avoid the statute by allegations that defendants had, within ten years prior to the commencement of this action, admitted in writing the indebtedness upon which the claim was based, that these admissions were by federal and state income tax returns, depositions, and other writings. Section 614.11, Code 1962.

Plaintiffs' motion for summary judgment and attached affidavit, duly verified, set forth copies of the defendants' federal and state income tax returns for the years 1952--1955, excerpts from a deposition of April 12, 1962, given by Mr. McTague allegedly containing admissions, and a statement that no defense exists to their claim on the note.

On August 3, 1964, defendants filed an application for additional time within which to file resistance to plaintiffs' motion for summary judgment, which was granted over the objections of plaintiffs that its filing was not timely. Later that day defendants filed their resistance and attached an affidavit of one of the defendants in this action. It alleged, in substance, this court had already determined that this cause involved fact questions. It stated defendants had a good defense to the action as set out in the pleadings, i.e., that the action was barred by the statute, that they had a good counterclaim, and that the parties were engaged in a theater joint enterprise and plaintiffs' contribution of $10,000 was acknowledged substantially in the form of the note sued upon by plaintiffs. In other words, the interest payments set out in the income tax returns were not acknowledgments of the debt sued upon so as to revive the note otherwise barred by the statute, but were for another obligation. The trial court denied the motion for summary judgment and, pursuant to some other applications and rulings not material to this appeal, the cause proceeded to trial on August 31, 1965.

Before the jury was selected, plaintiffs presented and the trial court granted their Motion in Limine, which precluded defendants and their counsel from using any 'pleading, testimony, questions, opening statement or arguments which might inform the jury' that 'the promissory note sued upon is anything other than what it purports to be,' and of 'the existence of an alleged joint venture between the parties.' Later the court relented and permitted Mr. McTague to answer one question relative to the entries on the income tax returns, a vital issue presented in this appeal.

We shall first consider appellants' contention that the court erred in overruling their motion for summary judgment.

I. Appellants contend a resistance to a motion for summary judgment not filed within ten days from the date of filing the motion is entitled to no consideration. They cite Rule 238, R.C.P.; Kriv v. Northwestern Securities Co., 237 Iowa 1189, 24 N.W.2d 751; and Mack v. Linge, 254 Iowa 963, 119 N.W.2d 897. These cases do not support that broad proposition.

Rule 238 in part provides: 'Plaintiff making a claim described in rule 237 may file a motion for summary judgment thereon at any time after defendant appears * * *. The clerk shall mail or deliver the copy of the motion as required in rule 82. Judgment Shall be entered as prayed in the motion Unless within ten days after it is filed, Or such other time as the court May, for good cause, Allow, the defendant resists it with affidavits showing facts which the court deems sufficient to permit him to defend. * * *' (Emphasis supplied.)

While the rule uses the mandatory word 'shall', it also uses the word 'unless' and the discretionary word 'may', in allowing further time to file resistance if good cause has been shown.

In Kriv v. Northwestern Securities Co., supra, defendant filed a motion for summary judgment on a cross-petition, which motion was heard 23 days after filing. No resistance had been filed until the day after the hearing, but apparently the applicant sought no relief in the trial court because of the delay in filing a resistance. No extension of time for filing appeared and, since the trial court in sustaining the motion did not decide it upon the lateness issue, we declined to consider the question. It is true, however, we said, 'Perhaps the court might have entered judgment as prayed in the motion because plaintiff failed to file resistance within ten days,' but we did not say it was compelled to do so or that it could not then for good cause shown extend the time to file a resistance. We do not consider this rule a default provision which would give the resistor no rights after the ten days had expired. Until the motion for summary judgment is heard or the affidavit of the resistor is stricken, we think the court, for good cause shown, can extend the time to file a proper resistance. This must be so, for even if judgment was entered, the court for a reasonable time has the power to set it aside on a proper showing. For example, see Rule 236, Iowa Rules of Civil Procedure, Vol. 2, by Cook, and citations on pages 667, 668.

In Mack v. Linge, supra, 254 Iowa 963, 966, 119 N.W.2d 897, 899, the only other Iowa case we have found touching on this problem, there were two affidavits filed in support of a resistance to a motion for summary judgment. The second one, executed by the litigant, was clearly beyond the ten-day period found in rule 238, but the one executed by her attorney within that period was held sufficient to reveal a factual situation justifying the denial of the motion, clearly avoiding the question of timely filing by the litigant. In fact, we said, 'We have not heretofore been called upon to determine the force and effect of the clause in Rule 238 to the effect that 'unless within ten days * * * defendant resists it with affidavits'. We do not think we are so confronted now.' Perhaps, then, this is a case of first impression on that question, but from those cases it is clear we have been and are reluctant to hold a trial court, prior to granting a summary judgment, cannot permit a resistance by affidavit even after the ten days provided in the rule pass if good cause for the delay is shown. We hold it may do so. As bearing upon this question, see Hartford Fire Ins. Co. v. Lefler, 257 Iowa 796, 135 N.W.2d 88, 94, and citations, pertaining to rule 177, Iowa Rules of Civil Procedure, on failure to make timely demand for a jury.

Here the good cause alleged was that the courthouse in Denison was closed on Saturday, the tenth day after filing, and that defendants believed they had until the following Monday to file their resistance. They point to rule 366, R.C.P., and to section 4.1(23) of the code as a basis for their claim that Saturday was a holiday in Denison, Iowa, and that when the last day for an appearance falls on a holiday, one has until the end of the next succeeding day that is not a Sunday or a holiday to appear and file a resistance to the motion.

Without deciding which of these time computation provisions applies here, we are satisfied the trial court did not abuse its discretion when it extended the time for defendants' filing of their resistance until August 3, 1964. It was aware that on August 1, 1964, the office of the clerk of court in the courthouse in Denison was closed. No hardship or disadvantage to plaintiffs was claimed by that ruling and none appears in this record. We are satisfied under the rule the court had authority to grant this very reasonable time extension, and hold it did not err in providing a hearing on the motion for summary judgment and in giving consideration to defendants' resistance thereto.

II. Rule 237, Rules of Civil Procedure, provides under what conditions a summary judgment might be entered in an action upon a...

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