Talbot v. Talbot, 50974

CourtUnited States State Supreme Court of Iowa
Citation122 N.W.2d 456,255 Iowa 337
Docket NumberNo. 50974,50974
PartiesJohnny A. TALBOT, Appellee, v. Frank A. TALBOT, Appellant.
Decision Date11 June 1963

Page 456

122 N.W.2d 456
255 Iowa 337
Johnny A. TALBOT, Appellee,
Frank A. TALBOT, Appellant.
No. 50974.
Supreme Court of Iowa.
June 11, 1963.

[255 Iowa 338]

Page 457

Guernsey & Powers Centerville, and D. W. Harris, Bloomfield, for appellant.

Valentine, Greenleaf & Griffing, Centerville, for appellee.

LARSON, Justice.

The matter before us in this interlocutory appeal, duly granted, involves the authority of the trial court under rule 215.1 of the Iowa Rules of Civil Procedure, 58 I.C.A. The trial court refused to dismiss plaintiff's proceeding in equity for an accounting and for dissolution of a partnership for want of prosecution under that rule, although it appears without dispute that the case had been on file for more than a year prior to July 15, 1962, and that the issues had been formed when the clerk of court gave the following notice to all counsel of record: 'You are each hereby notified that the petition in this case was filed February 24, 1961, and pursuant to the provisions of Rule of Civil Procedure 215.1 this case will be for trial and subject to dismissal if not tried at the next term commencing after August 15, 1962, to-wit: the October, 1962, Term, unless order is entered as provided in said rule.' [255 Iowa 339] On September 28, 1962, the plaintiff filed an application to produce certain books and papers, which was called to the court's attention on October 1, 1962, when the October term commenced. Plaintiff contends the trial court verbally agreed to continue the matter beyond the term, but there is nothing in the record to indicate defendant's counsel were notified of this action. The October term of court expired on November 18, 1962, without trial and without an order of record granting any continuance. On November 21, 1962, defendant filed his motion to dismiss pursuant to rule 215.1, Code, 1962. By way of resistance plaintiff claimed the case had not been assigned for trial on October 1, 1962, due to the fact that a material motion had not been ruled upon and the case was not ready for trial. However, it clearly appears no application for a continuance was filed and no formal order of continuance was issued by the court.

On December 4, 1962, plaintiff amended his application for production of books and papers and asked the court for a continuance. On December 13, 1962, the trial court ruled it had discretion in the matter and refused

Page 458

to dismiss the suit. This appeal followed.

Appellant relies upon two propositions for reversal: (1) That the discretion of the trial court to grant a continuance under such circumstances is limited as provided in Rule 215.1, and (2) that the trial court erred in overruling defendant's motion to dismiss under the facts disclosed by the record. He further contends that if any continuance was granted plaintiff by the court in October, it was entirely ex parte, without a hearing, and without the knowledge or consent of defendant, and therefore invalid.

I. 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...

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20 cases
  • Rath v. Sholty, 55024
    • United States
    • United States State Supreme Court of Iowa
    • June 29, 1972
    ...language of the rule's dismissal provisions. See Windus v. Great Plains Gas, 255 Iowa 587, 122 N.W.2d 901 (1963); Talbot v. Talbot, 255 Iowa 337, 122 N.W.2d 456 (1963); Windus v. Great Plains Gas, 254 Iowa 114, 116 N.W.2d 410 (1962). One commentator observed the amendment change was a retur......
  • Gold Crown Properties, Inc. v. Iowa Dist. Court for Pottawattamie County, 84-165
    • United States
    • United States State Supreme Court of Iowa
    • October 16, 1985
    ...a continuance themselves."); see Baty v. City of West Des Moines, 259 Iowa 1017, 1025, 147 N.W.2d 204, 209 (1966); Talbot v. Talbot, 255 Iowa 337, 339, 122 N.W.2d 456, 458 Here the application of D.R.R. recited a pretrial conference had been held and the trial date had been set for March 22......
  • Reed v. Bunger, 50952
    • United States
    • United States State Supreme Court of Iowa
    • June 11, 1963
    ...defendant's contention plaintiff waived his claim for breach of warranty and is estopped to assert it. No such issue was pleaded. One who [255 Iowa 337] relies on waiver or estoppel must plead the facts giving rise thereto. Watts v. Archer, 252 Iowa 592, 600, 107 N.W.2d 549, 553, and citati......
  • Anderson v. National By-Products, Inc., BY-PRODUCT
    • United States
    • United States State Supreme Court of Iowa
    • June 8, 1965
    ...a cause must be dismissed unless it is tried or continued during the next term after the clerk's notice is given. In Talbot v. Talbot, 255 Iowa 337, 341, 122 N.W.2d 456, 459, we said: 'Thus it may be said the case, when so noted for trial, is automatically placed in the assignment and, unle......
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