Sievertsen v. Paxton-Eckman Chem. Co.

• Decision Date: 03 July 1913
• Citation: 160 Iowa 662,142 N.W. 424
• Parties: SIEVERTSEN v. PAXTON-ECKMAN CHEMICAL CO. ET AL.
• Court: Iowa Supreme Court

160 Iowa 662

142 N.W. 424

SIEVERTSEN

v.PAXTON-ECKMAN CHEMICAL CO. ET AL.

Supreme Court of Iowa.

July 3, 1913.

Appeal from District Court, Carroll County; Z. A. Church, Judge.

Supplemental opinion. Former opinion adhered to and judgment reversed.

For former opinion, see 133 N. W. 744.

Deemer, J., dissenting.Murdock & Pancoast, of South Omaha, Neb., and Reynolds & Meyers, of Carroll, for appellant.

Douglas Rogers, of Manning, B. I. Salinger and L. H. Salinger, of Carroll, for appellee.

GAYNOR, J.

This case was before this court at the December term, 1911, and was reversed. Within the time limit of the statute and the rules of this court, and on the petition of appellee, a rehearing was granted, and it is now again before us for determination. We have read and examined with care the whole record as now before us, and are satisfied that if this court, at that time, had jurisdiction to hear and determine the cause, it was then rightly reversed.

The appellee, at the former hearing and now, contends with much learning, ability, and zeal that no jurisdiction rested in this court then, and none rests now, to hear and determine this case, and that this appeal should be dismissed for want of jurisdiction in the court to either reverse or affirm. The plaintiff predicates this claim on the wording of the statute limiting the right to appeal to six months from the rendition of the judgment. This statute provides: “Appeals from the district court may be taken to the Supreme Court at any time within six months from the rendition of the judgment or order appealed from, and not afterwards.”

This case was tried to a jury, and a verdict rendered by the jury in favor of the plaintiff. That thereafter, and as the record shows, within the time fixed by the court, defendant filed a motion for a new trial. In appellant's abstract of record appears the following: “That afterwards, to wit, on the 21st day of December, 1909, said motion for a new trial was overruled by the court, and on the 6th day of May, 1910, the said district court filed and entered of record the following judgment: ‘Now, to wit, on this 3d day of May, 1909, and still during said term, the above-entitled cause comes on for judgment, and the court, being fully advised in the premises, finds that the allegations of the petition of plaintiff are true, whereupon the court orders and adjudges that plaintiff, Peter Sievertsen, is as against both defendants entitled to the possession of the note described in the pleadings of plaintiff, to wit, a note of $971, signed by said Sievertsen and made payable to the order of said Paxton-Eckman Chemical Company. It is further ordered and adjudged that the plaintiff, Peter Sievertsen, have and recover of said defendants, the possession of said note, and that he have judgment against the defendant Paxton-Eckman Chemical Company for the costs of this action, and taxed at $199.80, and that execution issue therefor, to all of which said defendants excepted. [Signed] Z. A. Church. Judge of said Court.’ ” It further appears below: “Spread upon the record May 6, 1910. John Grelck, Clerk.”

It further appears from the abstract of record that on the 14th day of June, 1910, during the same term of court, when judgment was spread upon the records, on the hearing to correct the records in this cause, the following order was entered: “Now, on the 14th day of June, A. D. 1910, it being the last day of the regular April term, 1910, this matter comes on for hearing, Reynolds and Meyers appearing for defendant Paxton-Eckman Chemical Company, and L. H. Salinger appearing as attorney for Peter Sievertsen, and it being agreed in open court that the date of the signing of the judgment herein should be as of the 21st day of December, A. D. 1909, instead of the 3d day of May, 1909, and the court, being fully advised and satisfied in the premises, finds the facts to be: That in the trial of said cause the judge's calendar recites, under date of April 21, 1909, ‘Jury retired in charge of sworn bailiff under written instructions of the court, to which instructions both parties at the time duly excepted. Jury returned into court with verdict for plaintiff. Defendant granted until ten days from end of this term to file motion for new trial.’ That said entries on judge's calendar are in accordance with the facts. The court further finds that the April term, 1909, of court adjourned May 7, 1909, and that a motion for new trial was filed by the defendant, Paxton-Eckman Chemical Company on May 15, 1909, and that said motion for a new trial was overruled at the December term of court on the 21st day of December, 1909. That a judgment entry was signed on the 21st day of December, 1909, but that the same was not filed or spread upon the record of this court until the 6th day of May, A. D. 1910, during this term of court, and that attorneys for defendant had no knowledge that said judgment entry had been signed until the same had been spread upon the record. The court further finds that the clerk of this court has made an entry in the appearance docket, reciting that a judgment was rendered against said defendant, Paxton-Eckman Chemical Company, on May 3, 1909. That this entry was made subsequent to December 21, 1909. That said entry does not state the facts as to date of signing said judgment entry. It is therefore ordered that the motion to correct record and amendment thereto filed by the Paxton-Eckman Chemical Company in the above-entitled cause is hereby sustained, and the clerk of this court is hereby directed to correct the records of this court to conform with the entries in the judge's calendar as herein set out, and as of the dates when entered in said calendar, and that said record be corrected to conform with the findings of fact made herein. That the judgment entry filed herein be corrected to show date of December 21, 1909, instead of May 3, 1909, as date of signing same by the judge hereof, and that the records show that said judgment entry was filed in the office of the clerk of this court on May 6, 1910, and that it was spread on the records of this court on May 6, 1910. And that the appearance docket be corrected to show date of judgment in accordance herewith. F. M. Powers, Judge of 16th Judicial District of Iowa.”

On June 20, 1910, the defendant, Paxton-Eckman Chemical Company, perfected its appeal from the final judgment and rulings in said cause by serving notice upon the attorneys for the plaintiff, and on the First National Bank, of Manning, Iowa, codefendant, and upon John Grelck, clerk of the district court in and for Carroll county, and that said notice of appeal was filed in the office of the clerk of said court on June 20, 1910.

The plaintiff in the denial and amendment to appellant's abstract states: “The judgment appealed from was rendered May 3, 1909, entered on May 6, 1910, and appeal was perfected June 20, 1910.” The plaintiff contends that the record shows, and that the fact is, that the judgment from which this appeal is taken was actually rendered on the 3d day of May, 1909, and more than six months had elapsed from that date before notice of appeal was served, and that therefore no appeal was ever taken from said judgment to this court, as required by law, and that this court, therefore, cannot consider any errors in hearing in said judgment, upon appeal, and that the appeal, if it may be so considered, from the ruling on the motion for a new trial, brings nothing before this court for review, for the reason that all matters complained of in said motion inhere in the so-called judgment...