W. D. Phelan & Co. v. Des Moines Steel Co., 45304.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HALE
• Citation: 229 Iowa 275,294 N.W. 315
• Parties: W. D. PHELAN & CO. v. DES MOINES STEEL CO. et al.
• Docket Number: No. 45304.,45304.
• Decision Date: 22 October 1940

229 Iowa 275
294 N.W. 315

W. D. PHELAN & CO.
v.
DES MOINES STEEL CO. et al.

No. 45304.

Supreme Court of Iowa.

Oct. 22, 1940.

Appeal from District Court, Scott County; John E. Purcell, Judge.

Motions to strike cross-petition filed after case was dismissed by plaintiff. From ruling of the court sustaining such motions to strike, W. D. Phelan and Company appeal.

Affirmed.

[294 N.W. 316]

F. C. Harrison, of Davenport, for appellant.

Neiman & Leake, of Des Moines, W. T. Evans and Pike, Sias & Butler, all of Waterloo, T. J. Mahoney, of Boone, and Bush & Bush, of Davenport, for appellees.

HALE, Justice.

[1] This action was originally begun in the district court of Scott county by the Des Moines Steel Company, plaintiff, against all the other parties hereto, defendants. On appeal the abstract and argument of Phelan and Company designated Phelan and Company as plaintiff, but the action should properly be entitled as it originally stood in the district court.

The issue before the court is whether, after the dismissal of a case (where the petition is the same as therein dismissed) a cross-petition may be filed and maintained by one of the defendants. The original dismissal was dated August 3, and filed August 4, 1938, and the cross-petition herein involved was filed July 19, 1939. This cross-petition was attacked by motions to strike, for the reasons that it was filed after the cause had been dismissed and the court had no jurisdiction to entertain the action, as being filed too late, and that the cross-petition was not filed and brought in accordance with the law and rules of practice. The court held that the motion to strike should be sustained, and it was accordingly sustained. From this ruling W. D. Phelan and Company appeal.

The facts leading up to the ruling on the motion were, that on March 7, 1936, a contract was entered into by the Iowa Highway Commission with McKenzie and Holm, Inc., and the Burch Construction Company, for grading and paving in Scott county. The work was completed and accepted on June 26, 1937. Three claimants-the Des Moines Steel Company, W. D. Phelan and Company, and the Jenner Construction Company-filed claims with the highway commission, the Phelan claim being filed on July 29, 1937, for $560 for rental of and damage to a machine. The Jenner Company claim does not enter into the matter. On August 25, 1937, the Des Moines Steel Company brought suit against McKenzie and Holm, Inc., the sureties on the bond, the highway commission, Phelan and Company, and the Jenner Construction Company, asking for judgment on its claim against McKenzie and Holm, Inc., but asking no relief against the highway commission or the other defendants. On September 3, 1937, W. D. Phelan and Company filed answer, as follows:

“Comes now W. D. Phelan and Company, one of the defendants in the above entitled action and for answer to plaintiff's petition states:

Defendant admits that it is a corporation organized and existing under the laws of the State of Iowa, and that on July 29, 1937, it filed a claim with the defendant, Iowa State Highway Commission, as set forth in plaintiff's petition.

Defendant, having insufficient knowledge as to the truth or falsity of the other allegations contained in plaintiff's petition, denies each and every allegation therein contained and demands strict proof thereof.

Wherefore, defendant prays that plaintiff's petition be dismissed as against this defendant and that it be given judgment for costs.”

On September 8, 1937, Stanley D. Moore, assignee, of McKenzie and Holm, Inc., was made party by amendment, as was the Burch Construction Company, but on the latter no notice was ever served and it never appeared in the action. On September 9, 1937, the highway commission filed answer, as part of which it set out the names of the three above claimants, and

[294 N.W. 317]

alleged that the final quantities and amounts earned under the contract had not been determined, and that the commission was unable to state the amount earned, or due, or unpaid, to McKenzie and Holm, Inc., and Burch Construction Company. The remaining paragraph of the answer is as follows: “Par. 10. For further answer this defendant states that it is informed and believes, and alleges the fact to be, that the defendant McKenzie and Holm, Inc., have made an assignment for the benefit of creditors, and that Stanley D. Moore is the assignee under the assignment. Further, as hereinbefore set out, the contract of this defendant was with McKenzie and Holm, Inc., and the Burch Construction Company, and neither the Burch Construction Company, nor the assignee for McKenzie and Holm, Inc., have been made parties to this proceeding, and this defendant alleges that the said assignee and the Burch Construction Company are necessary parties, and that unless, they are made parties to this proceeding, the court is without jurisdiction to make a binding order for the disposition of the funds.”

Nothing further was done in the case, but there were negotiations for settlement and finally, on August 4, 1938, there was filed the following dismissal:

+-----------------------------------------------------+
                ¦“Des Moines Steel Company, Plaintiff,¦}¦Law No. 31799¦
                +-------------------------------------+-+-------------¦
                ¦ ¦}¦Dismissal ¦
                +-------------------------------------+-+-------------¦
                ¦vs ¦}¦ ¦
                +-------------------------------------+-+-------------¦
                ¦McKenzie & Holm, Inc., Defendant. ¦}¦ ¦
                +-----------------------------------------------------+
                

Comes now the Plaintiff in the above-entitled action, and dismisses said cause with prejudice at the cost of the defendant, McKenzie and Holm, Inc.”

No proceedings were had until July 18, 1939, answer and cross-petition, and on August 7, 1939, amendment to answer and cross-petition were filed by Phelan and Company. This cross-petition sets up the rental of a power shovel to the contractor McKenzie and Holm, Inc., for the sum of $400; that it was used until September 14, 1936, on the paving in question; that certain repairs were necessary; and that the amount due from the defendant McKenzie and Holm, Inc., was $560. It further alleged the filing on July 9, 1937, of a claim with the highway commission, and that...