Street v. Stewart
| Decision Date | 05 April 1939 |
| Docket Number | 44604. |
| Citation | 285 N.W. 204,226 Iowa 960 |
| Parties | STREET v. STEWART et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; F. S. Shankland, Judge.
Law action for damages founded on negligence. From a judgment against defendants they have appealed.
Reversed.
Bradshaw, Fowler, Proctor & Fairgrave, of Des Moines, for appellants.
Walter Maley, J. P. McNerney, and J. A. Dyer, all of Des Moines, for appellee.
On November 12, 1935, at about 7:25 P. M., plaintiff sustained certain physical injuries while walking across West 5th Street at or near its intersection with Keosauqua Way, in the city of Des Moines. The injuries resulted from a contact of plaintiff with an automobile which was being driven by defendant Luka with consent of defendant Stewart, the owner of the car. Plaintiff claims that negligent operation of the car was the proximate cause of the injuries he sustained. Damages therefor were sought in this action. Upon a verdict for $2,000 a judgment was rendered against defendants. On motion for new trial there were proceedings such that the amount of the judgment was reduced by plaintiff's remittitur to $1,500. Defendants have appealed.
Appellants assign as errors several of the rulings on appellants' exceptions to instructions and motion for new trial. In appellee's motion to dismiss this appeal, submitted with the case, it is urged that appellants may not be heard on these assignments for the reasons (1) that the filing of the exceptions to instructions and of the motion for a new trial was not timely, and (2) that there was no exception taken by appellants to the judgment. From examination of the record it clearly appears that an exception to the judgment was preserved. But above reason (1), requires discussion. It is founded on section 11551, Code 1935, which provides that an application to vacate a former verdict or decision and for a new trial must be made within five days after the verdict or decision is rendered unless for good cause the court extends the time. Appellants' application was not filed within the five days. But they claim that during that period the court extended the time for 20 days. If the claim is correct the application was filed in due time. But appellee denies that an extension of time was effected. Turning to what actually occurred the record discloses the following; the verdict was returned on January 27, 1938; following the notation of the return of the verdict there appears on the judge's calendar an entry under date of January 27, 1938 ordering that plaintiff have and recover judgment for $2,000 with interest and costs, and noting that defendants excepted on the calendar appears another entry in these words: " Jan 28 1937 defts are hereby granted 20 days to file motion for new trial, exceptions to instructions and for judgment notwithstanding the verdict" ; (parties in argument refer to this entry as designating the year 1938 instead of 1937 and we will so consider it); on February 3, 1938, the clerk entered the calendar entry last above mentioned in the record book. On these facts appellee's contention is that the above quoted entry on the judge's calendar purporting to grant the 20 days was not an order of the court prior to February 3, 1938, when entered in the record book, and that on February 3, 1938, the time within which the order could effectively extend the time for filing the application had expired and under the order appellants did not reacquire the right they had lost to file an application.
In State v. Wieland, 217 Iowa 887, 251 N.W. 757, Justice Kintzinger speaking for the court, is an exhaustive discussion of the statutes that are pertinent to the controversy above stated, with citations from many of our earlier opinions. The Wieland case and the authorities therein cited infer, from the statutory requirement that all judgments and orders must be entered in the record book, the following propositions, i. e.; that the entry made by the clerk in the record book is the legal evidence of a judgment or order; that the judge's calendar is in the nature of a memorandum book designed to promote the convenience of the judge and clerk and is not designated by the statutes as the place for final repose of judgments and orders, that place being the record book; that ordinarily the calendar is for the use of the judge in entering memoranda intended for the guidance of the clerk in entering judgments and orders.
As to appellee's proposition that there was no order extending the time until February 3, 1938, the date on which the calendar entry was copied into the record book, the question is obviously one of construction of section 11582, Code 1935 which provides that all judgments and orders must be entered on the record of the court, in its relation to section 11551. In one sense it may be said that a judgment is rendered when it is announced, or when the judge writes in his calendar a statement of his decision, but we have also said in numerous cases that until the memorandum is entered on the court record, often in extended form, there is no competent evidence of such rendition. Kennedy v. Citizens' National Bank, 119 Iowa 123, 93 N.W. 71,Sievertsen v. Chemical Co., 160 Iowa 662, 133 N.W. 744, 142 N.W. 424.Questions have often arisen with respect to the consequences and effects of the court's proceedings during the interval between the making of an entry of the court's decision on the calendar, and the time when the clerk enters same upon the record book. In practically every case presenting the question the problem was whether, during the interval mentioned, the proceedings had efficacy in some particular respect, that was involved in that case. An instance is Callanan v. Votruba, 104 Iowa 672, 74 N.W. 13, 40 L.R.A. 375, 65 Am.St.Rep. 538, a case in which the problem was to determine the time when certain judgments became liens on defendant's real estate under a statute providing that such liens attach at the time of the rendition of the judgment. Third parties had acquired defendant's title to the real estate during the period intervening between the time entries were made and signed by the judge, and marked filed by the clerk, ordering the judgments, and the time these orders were recorded in the record book. The holding was that the liens did not attach before the entry was made by the clerk, the opinion noting that the proof that there were judgments was to be found, under the statutes, in the entry in the record book, where nothing in fact appeared. The question has likewise arisen as to the effect of the court's proceedings before being entered in the record book with respect to issuance of execution, and with respect to the service of notice of appeal to the supreme court. Upon the latter question it was the holding of this court that the notice was premature if served before the entry in the record book. But in 1909 the legislature modified our construction of the statutes involved, by enacting that the notice of an appeal shall not be insufficient because served before the clerk has spread the judgment entry upon the court record if it shall appear that such entry has been made before the filing of appellant's abstract. In the Wieland case, supra, and in several cases therein cited including the Callanan case, supra, it was properly held that the court's proceedings had not effected the particular results that the court was considering until entry of the proceedings in the court's records. But in other cases construing section 11582 we have held that there are certain results, differing from those involved in the cases to which we have made reference above, that are effectively accomplished by the pronouncement by the court of its decision or by the entry of the decision on the calendar, and this before any entry of the proceedings in the record book. In the case of Coffey v. Gamble, 117 Iowa 545, 91 N.W. 813, in certiorari, respondent court found petitioner guilty of...
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