Talbot v. Talbot, 50974
| Decision Date | 11 June 1963 |
| Docket Number | No. 50974,50974 |
| Parties | Johnny A. TALBOT, Appellee, v. Frank A. TALBOT, Appellant. |
| Court | Iowa Supreme Court |
Guernsey & Powers Centerville, and D. W. Harris, Bloomfield, for appellant.
Valentine, Greenleaf & Griffing, Centerville, for appellee.
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.' 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 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 matter, except on application, notice and hearing to all parties, unless the same is by stipulation, and then only by an order made of record in the cause. Windus v. Great Plains Gas, Iowa, 116 N.W.2d 410; Rule 215.1, Rules of Civil Procedure, Code of Iowa, 1962.
Rule 215.1 became effective July 4, 1961. It is a uniform rule for dismissal for want of prosecution. Its policy in the first paragraph states: 'It is the declared policy that in the exercise of reasonable diligence every civil and special action, except under unusual circumstances, shall be brought to issue and tried within one year from the date it is filed and docketed and in most instances within a shorter time.'
The rule then is applied to all cases at law or in equity, and places upon the clerk a duty as follows: (Emphasis supplied.)
It then goes on to provide: 'All such cases shall be assigned and tried or dismissed without prejudice at plaintiff's costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte.' (Emphasis supplied.)
The rule is then made inapplicable to certain matters not relative to the case at bar and concludes: (Emphasis supplied.)
As stated in the recent case of Windus v. Great Plains Gas,...
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