Thompson v. Butler

• Decision Date: 15 June 1937
• Docket Number: 43646,43929.
• Citation: 274 N.W. 110,223 Iowa 1085
• Parties: THOMPSON v. BUTLER.
• Court: Iowa Supreme Court

274 N.W. 110

223 Iowa 1085

THOMPSON v. BUTLER.

Nos. 43646, 43929.

Supreme Court of Iowa.

June 15, 1937

Appeal from District Court, Polk County; Loy Ladd, Judge.

Plaintiff brought an action against defendant for libel. The jury returned a verdict for defendant. Plaintiff filed a motion for a new trial which was sustained. Defendant appealed from this ruling of the trial court. This appeal is No. 43646.

Defendant also appeals from an order of the trial court sustaining a motion of the appellee made after the first appeal to correct record nunc pro tunc, this appeal being No. 43929. The appeals are consolidated here. Appeal No. 43929 is dismissed. The cause in appeal No. 43646 is reversed.

Reversed.

Parrish, Guthrie, Watters & Colflesh, of Des Moines, for appellant.

Casper Schenk, of Des Moines, and Pat Whitaker, of Tampa, Fla., for appellee.

STIGER, Justice.

On August 10, 1931, plaintiff a resident of Florida, commenced an action against the defendant, a resident of Des Moines, for libel asking damages in the sum of $100,000. Plaintiff alleged that on or about May 8, 1931, the defendant falsely, recklessly, and maliciously wrote and mailed through the post office at Des Moines a certain letter to Ed. C. Wright, St. Petersburg Fla., concerning the plaintiff, which letter is as follows:

" E. E. Butler,

Des Moines, Iowa.

May 8th, '31.

Dear Ed:

Drove home in four days and had a fine trip. Please spread the news. I inquired about your friend and am informed that he has swindled all the women and children in this town. Phoenix stock that he sold for $100.00 a share isn't worth the paper now. My banker said that if he had cash and Liberty Bonds for security he wouldn't loan him a dime. He advised you to take in your sidewalks and to guard the filling in your teeth. Has not been in jail but a pure oversight by the authorities.

Sincerely,

Earle."

Defendant's plea was a general denial. At the close of the evidence plaintiff filed a motion for a peremptory instruction that the sole question to be determined was the amount of damages to which plaintiff was entitled and requiring the jury to return its verdict for plaintiff, which motion the court overruled.

Plaintiff requested the following instruction: " You are instructed that, under the evidence in this case, plaintiff is entitled to recover and your verdict should be for plaintiff with damages in an amount not to exceed $100,000." This instruction was refused.

The jury returned a verdict for defendant on October 10, 1935. On October 12, 1935, the following order for an extension of time for filing motion for new trial and exceptions to instructions was entered: " Now on this day this cause comes on for hearing, and the court being fully advised in the premises, defendant is granted to November 1st, 1935, to file Exceptions to Instructions and motion for New Trial." It should be observed that, though the jury returned a verdict for defendant, the order granted the defendant an extension of time.

On October 30, 1935, plaintiff filed exceptions to the instructions and motion for a new trial. On December 21, 1935, the trial court made the following ruling on the motion: " Now on this day this cause comes on for hearing upon exceptions to instructions and motion for new trial and the court being fully advised in the premises, motion sustained; defendant excepts."

On January 2, 1936, the trial court amended his ruling on the motion for new trial as follows:

" As an amendment to and a part of the ruling of the court on the motion for new trial filed herein on October 30, 1935, the particular grounds are stated below on which the court grants a new trial, to-wit:

1. That the court should not have submitted to the jury the issue as to whether or not the defendant wrote the original of which Exhibit ‘ A’ was a copy, as there was no issue, under the evidence, on that proposition.

2. That the court should not have submitted to the jury the question as to whether or not the defendant published the original of which Exhibit ‘ A’ is a copy, for the reason that, under the evidence, there was no issue made on that proposition.

3. That on account of the grounds set forth in Paragraphs 1 and 2 above, the court should not have questioned the writing and publication of the letter in question, as set forth in Instruction No. 6.

Both parties except."

The defendant appealed from the rulings of the trial court sustaining the motion for a new trial. This appeal is No. 43646.

After appellant filed his brief and argument, appellee, on August 21, 1936, filed in the district court of Polk county a motion to correct the record nunc pro tunc by striking the word " defendant" in the order of October 12, 1935, extending the time for filing a motion for a new trial and inserting the word " Plaintiff." The motion states that the word " defendant" in the entry is an evident mistake for the following reasons:

" 1. The application for said extension of time was made by plaintiff's counsel for and on behalf of plaintiff and not for defendant.

2. Defendant had no reason to ask for, or receive, an extension of time, since he was successful in securing a favorable verdict, he was not entitled to complain of the instructions, and he had no reason to demand a new trial.

3. At the time of the oral hearing and submission on plaintiff's Exceptions to the Court's Instructions and Motion for new trial, defendant's counsel appeared personally, and raised no question as to the timeliness of plaintiff's filing of the same, but argued orally in resistance to plaintiff's said exceptions and motion, and filed a written brief and argument against the plaintiff's said Exceptions to Instructions and Motion for New Trial on their merits alone."

It appears from the record that counsel for the plaintiff-appellee, on October 12, 1935, two days after the verdict, appeared before the trial judge and requested him to enter an order giving plaintiff an extension of time to file a motion for new trial and exceptions to instructions to November 1, 1935, and that the trial court agreed to enter such an order; that counsel believed such an order had been entered until he discovered the mistake on August 21, 1936, in examining the record in preparing his amendment to the abstract of record on the appeal.

Defendant-appellant filed a special appearance to the motion to correct the record, alleging:

(1) That the court lost jurisdiction of the defendant upon the entry of the final judgment October 10, 1935, and that no proper notice was served upon defendant by which the court reacquired jurisdiction over him.

(2) That the court has no jurisdiction of the subject matter because the cause is now pending upon appeal in the Supreme Court of the state of Iowa.

(3) The trial court had no jurisdiction to sustain plaintiff's motion for new trial and exceptions to the instructions for the reason that the pleadings were not filed within the statutory period and no order extending the time to the plaintiff for filing such pleadings was made.

The trial court overruled the special appearance of defendant and set the hearing on the motion to correct the record nunc pro tunc for September 26, 1936. The defendant appeals from the order overruling his special appearance. This appeal is No. 43929. The two appeals have been consolidated here.

We will first consider the appeal from the order overruling defendant's special appearance, No. 43929.

Appellee urges that the order overruling the special appearance should be affirmed for the following reasons:

(1) The question is moot since appellant, on November 8, 1935, waived all objections to the timeliness of the filing of appellee's exceptions to instructions and motion for new trial.

(2) Special appearances can be made only at the commencement of actions, and appellant, in resisting appellee's motion to correct the record, raised questions beyond the scope of a special appearance, thus conferring jurisdiction over his person.

(3) Appellant had adequate notice to justify the court in correcting its record, both under the statute and under its inherent power.

We are of the opinion that this appeal may be disposed of on appellee's first proposition that the questions raised by this appeal are moot.

Code, § 11551, provides that an application for a new trial must be made within five days after the verdict is rendered unless for good cause the court extends the time.

It is well settled that a motion for new trial and exceptions to instructions not filed within the five-day period or within the time fixed by the court are fatally late and will not be considered on appeal. Selby v. McDonald, 219 Iowa, 823, 259 N.W. 485; Lein v. John Morrell & Co., 207 Iowa, 1271, 224 N.W. 576; Pyle v. Herring, 185 Iowa, 646, 164 N.W. 173.

It is equally well established that the belated filing of a motion for new trial or exceptions to instructions may be waived and the matters heard on their merits. Home Savings Bank v. Klise, 205 Iowa, 1103, 216 N.W. 109; Heflen v. Brown, 208 Iowa, 325, 223 N.W. 763.

The order sustaining the motion for new trial recites that there was a hearing and gave defendants an exception. No objection to the timeliness of the filing of the motion and exceptions to the instructions was made by defendant. While some claim is made by defendant that he did not appear at the hearing, we are satisfied from the record that the defendant did appear at the hearing and that there was a hearing on the merits. We hold that the defendant waived the belated filing of the motion and exceptions to instructions.

Assuming, without deciding, that the trial court did not have jurisdiction to make the order correcting the record nunc pro tunc, the error is...