Scott v. Union Mut. Cas. Co.
| Decision Date | 12 December 1933 |
| Docket Number | No. 42167.,42167. |
| Citation | 252 N.W. 85,217 Iowa 390 |
| Parties | SCOTT v. UNION MUT. CASUALTY CO. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Plaintiff instituted action at law to recover upon a policy of insurance. After answer was filed, the court, on its own motion, dismissed the action for want of attention and failure to prosecute. Plaintiff filed motion to set aside dismissal and reinstate the action. From an order of the trial court overruling said motion, plaintiff appeals.
Affirmed.
Joseph C. Picken, of Des Moines, for appellant.
Harold S. Thomas, of Des Moines, for appellee.
On August 6, 1930, Erma M. Scott, the beneficiary in a policy of casualty insurance issued by defendant, Union Mutual Casualty Company, to her husband, brought action in the district court of Polk county, Iowa, for $5,000, alleging accidental injuries causing his death. On September 6, 1930, the defendant company filed a motion for a cost bond, and bond was filed by plaintiff on September 18, 1930. On September 16, 1930, by order of court, the defendant was given ten days to plead after the filing of cost bond. On December 3, 1930, the defendant filed its answer.
No trial notice was filed for the January, March, or May terms, 1931, of said court, and on June 15, 1931, there was published in the Des Moines Daily Record, the official paper of the district court of Polk county, Iowa, the following notice:
In the list of cases referred to in said notice there was included cause No. 39404-Law, which was the number of the instant case. On June 25, 1931, the following order was entered by Judge Ladd: “It is hereby ordered that the following cases be and they are hereby dismissed for want of attention at plaintiff's cost.” Among the list of cases thus dismissed was the case of ““Erma M. Scott vs. Union Mutual Casualty Company, Law, No. 39404-76.”
On May 10, 1932, the following motion was filed:
“Comes now Erma M. Scott, the plaintiff in the above entitled cause; and on her affidavit and the affidavit of William E. Miller herewith submitted, moves the Court to set aside the order of dismissal entered by this Court on the twenty-fifth day of June, 1931, and to reinstate the cause.
The plaintiff respectfully refers the Court to the case of Byington v. Quincy, reported in 61 Iowa, 480, 16 N. W. at page 582.
Cunningham & Scott,
Attorneys for Plaintiff.”
Attached to this motion was an affidavit of plaintiff, Erma M. Scott, and an affidavit of Wm. E. Miller. On November 4, 1932, defendant filed a resistance to plaintiff's motion to reinstate. Hearing was had on said motion to reinstate, and on December 22, 1932, an order was entered by Judge O. S. Franklin overruling plaintiff's motion to reinstate. From this order the plaintiff has appealed.
The first two errors relied upon by plaintiff for reversal are as follows:
[1] “I. Because plaintiff's action was dismissed as a result of unavoidable casualty, misfortune, mistake and/or misunderstanding and all without fault imputable to her.
II. Because reasonable excuse was shown, by affidavit of plaintiff and her counsel for the so-called ‘Want of Attention’ which was the cause of dismissal by the Court, to warrant the setting aside of the default.”
These two allegations of error may be considered together.
I. Rule 3 of the district court of Polk county, Iowa, which was in force at the times herein involved, was as follows: “The Judge of the Assignment Division, whenever it is deemed advisable, upon ten (10) days notice, published in the Daily Record giving the numbers of such cases, may dismiss any case for want of attention which has been upon the docket for three consecutive terms, and not noticed for trial unless good cause be shown why such action should not be taken.”
It further appears without dispute that the Des Moines Daily Record was the official paper of the district court of Polk county, Iowa.
In the motion for the reinstatement of the case, the grounds for such reinstatement were not set forth in the motion, but the court was asked to reinstate the case upon the affidavits of the plaintiff and Wm. E. Miller attached to the motion.
In the affidavit of the plaintiff attached to said motion, she states in substance that she employed Bloom & Bloom, a firm of attorneys in Washington, Pa., which was the place of her residence, and instructed them to bring suit upon the policy of insurance involved in this action; that said attorneys desired resident counsel at Des Moines, and, acting for her, employed Wm. E. Miller as such resident counsel; that thereafter she was informed that a petition had been filed in this cause by said Wm. E. Miller on the 6th day of August, 1930, and that original notice had been served on the defendant; that she supposed that the matter was being attended to with diligence by said Wm. E. Miller, and was so informed by Bloom & Bloom; that she later became alarmed at the delay in the prosecution of the cause and about November 23, 1931, requested Bloom & Bloom to secure other local counsel in Des Moines, Iowa; that Paul H. Cunningham had been recommended to her, and she instructed Bloom & Bloom to secure his services; that Bloom & Bloom wrote to Wm. E. Miller on the 23d day of November, 1931, informing him of her request; that on the 25th day of November, 1931, the said Wm. E. Miller replied, and informed Bloom & Bloom that her action had been dismissed on the 25th day of June, 1931, for want of prosecution and failure to file a trial notice; that she relied upon Bloom & Bloom, who were reputable attorneys, and upon their correspondent counsel to guard her rights with diligence; and that by reason of such reliance she was misled.
From the affidavit of Wm. E. Miller, attached to the motion, it appears that he never was retained or paid any fee as attorney for plaintiff, and never entered into any agreement or contract with plaintiff or her attorneys fixing the amount of his compensation or as to whether such compensation should be certain or contingent; that at the request of Bloom & Bloom he prepared the petition in the case by copying substantially a statement of claim which said attorneys had previously filed in a Pennsylvania court; that no copy of the policy was furnished to him; that he caused the original notice to be served upon the defendant and paid the filing fee and service fee for which he was reimbursed by Bloom & Bloom; that he never received from plaintiff or her attorneys any information, data, or evidence whatsoever as to the cause of the death of plaintiff's husband other than the matters stated in the petition; that upon the filing of defendant's motion for a cost bond he promptly informed Bloom & Bloom and advised them how to proceed; that on the filing of defendant's answer on December 3, 1930, he, on the same day, sent a copy thereof to Bloom & Bloom, but received no acknowledgment of the receipt thereof; that during the summer of 1930, in his early correspondence with Bloom & Bloom, they informed him that they desired the suit in Polk county to await the trial or disposition of some similar suit or suits in Pennsylvania; that on November 4, 1930, the attorney for defendant called at his office and gave him information concerning the case, based on an investigation which such attorney had made in Pennsylvania; and that on the next day, November 5, 1930, he wrote Bloom & Bloom giving them the information which he had received from the attorney for the defendant. In this letter, a copy of which is set out in the affidavit, it was stated that the defendant had nothing to offer by way of settlement, but would contest the case. This letter also contained the information that the defendant claimed that the insured had died of apoplexy and not of the effects resulting directly and exclusively of all other causes from bodily injuries. In this letter it was also stated that the attorney for defendant was disposed to file an answer and proceed to take depositions, and there was a brief statement of the procedure followed in taking depositions. The affiant stated that the receipt of the foregoing letter was never acknowledged, nor was it answered by the plaintiff or her attorneys; that, having no brief of facts...
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