Tate v. Delli
| Decision Date | 24 November 1936 |
| Docket Number | 43420. |
| Citation | 269 N.W. 871,222 Iowa 635 |
| Parties | TATE v. DELLI. |
| Court | Iowa Supreme Court |
Appeal from District Court, Polk County; O. S. Franklin, Judge.
Appeal in law action from two orders of the trial court. One expunged a prior order, the other set aside a judgment by default.
Affirmed.
J Nelson Thompson, of Des Moines, for appellant.
Volney Diltz, of Des Moines, for appellee.
This is an action at law for damages and is grounded on alleged negligence on part of defendant. On July 2, 1935, the second day of the July term, an entry was made by the trial court declaring defendant in default for want of appearance or pleading. On July 19, 1935, judgment upon default was rendered against defendant for $1,500 and costs. On August 3 1935, during the same July term, defendant filed a motion to set aside the default and judgment, accompanied by affidavit of merit, and at the same time filed answer to the petition. At some time prior to these dates the trial court had adopted what is known as Court Rule 18. Inter alia this rule provides that a failure of a party filing a motion to properly enter the motion in the " Motion Docket" by its correct title and number and by its correct designation and by noting the names of the attorneys for plaintiffs and defendants shall cause the motion to stand stricken and shall cause the record of the case to stand as though no attempt had been made to file such motion. When defendant filed his motion on August 3 he made the entries in the motion docket which are called for by this rule, excepting that he failed to note on the motion docket the number of the case. On September 6, 1935, without notice to or knowledge of defendant, the court ordered that defendant's motion filed August 3 be stricken for failure to comply with Rule 18, that is, for the failure to note in the motion docket the number of the case. On September 9, 1935, defendant filed motion to set aside and expunge from the record the order of September 6, and to reinstate defendant's motion. To this plaintiff filed resistance. On September 28, 1935, the trial court sustained the motion filed by defendant on September 9 and expunged the order of September 6. That the court erred in so doing is plaintiff-appellant's first assignment of error, and we proceed to consider same.
When on September 28 the trial court expunged its order of September 6 it had before it the fact that on August 3, 1935, defendant filed his motion in the office of the clerk of the trial court. The court also had before it the fact that such filing of the motion had been in conformity with the statutory law defining what constitutes a filing of a pleading, same being found in section 10833, Code 1935, which reads: The requirements of this statute had been fully met by defendant. Resultantly, defendant's motion had been duly filed. But Court Rule 18 provides that a failure of a party to make all of certain entries in a " Motion Docket" shall cause the record of the case to stand as though no attempt had been made to file such motion. Both parties conceded that to have force or validity a rule of the district court must not be unreasonable nor in contravention of statutory law. The question of reasonableness need not be discussed because we are satisfied the rule involves even more, that is a contravention of statutory law. For determination of the case, is suffices to consider only the penalty fixed by this rule in event of its nonobservance. As already stated, the penalty is that the motion stands stricken. and the record of the case stands as though no attempt had been made to file such motion. Likely the Legislature might have amended section 10833 by requiring the making of entries in a motion docket by a party litigant as one of the essential parts of the filing of a pleading. But so to amend a statute did not lie within the powers of the district court. The statute determines what constitutes a filing of a pleading. The penalty of Rule 18, if enforced, would nullify such statute, by the rule's provision that the things prescribed by statute as sufficient to constitute a filing avail nothing, unless as a part of the filing something additional, prescribed by the court, be done. We think the district court did not err in annulling its order based on a court rule that was so apparently in derogation of the statutes.
To the motion to set aside the default and judgment plaintiff filed a resistance. On October 26, 1935, the motion was sustained. This ruling is assigned as error. Appellant urges that defendant has not shown an unavoidable casualty or misfortune preventing him from defending, and that the showing is insufficient as a reasonable excuse for having made default.
The showing in that respect, made by defendant, may be summarized as follows. At the time of service of the original notice in Des Moines on June 19, 1935, defendant was engaged in a contract job in Centerville which was requiring his attention and effort. On the day of the service defendant handed the original notice to an employee in his office and directed the employee to deliver the original notice on the following day to defendant's attorney, Volney Diltz, of Des Moines, for his care and attention. Due to defendant's absence from Des Moines the following two or three days, and the rush of business thereafter, and believing the matter was being cared for and handled by attorney Diltz, defendant took no further personal steps. At the time of the service of the original notice defendant had been advised that his public liability insurance carrier had compromised and settled the claim being made by plaintiff, and had secured a written release, although at this time defendant had not yet seen the release. Defendant heard nothing further regarding the matter after service of the original notice until plaintiff's attorney came to defendant's place of business and informed him that a judgment by default had been secured by plaintiff. It is further shown that in addition to setting out in the affidavit of merit a copy of a written release of all claims of plaintiff against defendant in consideration of the receipt by plaintiff of $20, the release purporting to have been signed by plaintiff prior to the commencement of the action, another defense was claimed by defendant, namely that any personal injuries on account of which plaintiff seeks damages were caused by plaintiff stepping off from a sidewalk immediately in front of defendant's automobile in such manner that plaintiff's being knocked down by the car was wholly unavoidable by defendant and would not have occurred but for plaintiff's alleged negligence in the manner stated. It is also shown that it was defendant's intention at all times to have the case defended by attorneys and that the attorneys would have been so informed if the employee had followed defendant's said instructions and had delivered the original notice as instructed to do. It is shown that the employment of defendant's said employee terminated within a few days after the service of the notice and by reason thereof the original notice was not again mentioned by either defendant or the employee. Appellant urges that this showing by defendant, although in no manner controverted, is a showing of nothing else than inexcusable negligence.
Much discretion is conferred on a trial court in passing on motions to set aside judgments entered by default. " It is the universal rule that the action of the court on such a motion will not be disturbed, in the absence of a reasonably clear case of abuse of discretion." Bradshaw v. Des Moines Ins. Co., 154 Iowa 101, 134 N.W. 628, 630. ...
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