Williamson v. Casey, No. 2--56333

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Submitted to MOORE; McCORMICK
• Citation: 220 N.W.2d 638
• Parties: Faye WILLIAMSON, Appellant, v. Sarah Ann CASEY et al., Appellees.
• Decision Date: 31 July 1974
• Docket Number: No. 2--56333

Page 638

220 N.W.2d 638 Faye WILLIAMSON, Appellant,
v.
Sarah Ann CASEY et al., Appellees. No. 2--56333. Supreme Court of Iowa. July 31, 1974.

Robert Kohorst, of Louis, Moore & Kohorst, Harlan, for appellant.

James A. Pratt, of Porter, Heithoff, Pratt & Reilly, Council Bluffs, and James W. Knowles, Omaha, Neb., for appellees.

Submitted to MOORE, C.J., and LeGRAND, REYNOLDSON, HARRIS and McCORMICK, JJ.

Page 639

McCORMICK, Justice.

We granted plaintiff interlocutory appeal of trial court's order sustaining defendants' motion to set aside a default judgment. We reverse the trial court because we find no basis in the record for the judgment to be set aside. We remand the case for determination of damages.

Plaintiff Faye Williamson commenced a tort action for personal injury damages against defendants Sarah Ann Casey, Thomas C. Casey, and John P. Casey under the provisions of the nonresident motorist statute, §§ 321.498--321.512, The Code. The action arose from a motor vehicle collision which occurred on interstate 80 in Cass County on December 21, 1970. Plaintiff was a passenger in an automobile driven by Marian Euvon Peterson which was struck from the rear by an automobile driven by defendant Sarah Ann Casey and owned by defendants Thomas C. Casey and John P. Casey.

Plaintiff was a resident of Shelby County and defendants resided in Colorado Springs, Colorado. The suit was brought in Shelby County. An original notice of suit was filed with the commissioner of public safety on December 15, 1972. Notification of the filing was mailed within ten days thereafter by restricted certified mail to each defendant. See §§ 321.501, 321.502, The Code. Separately, notification was personally served in Colorado on each defendant. See § 321.504, The Code. The original notice and notification were in statutory form. Proof of service was duly filed. See § 321.505, The Code.

Defendants failed to appear in the action by noon of the sixtieth day following service of the original notice on the commissioner. See § 321.500, The Code. On February 14, 1973, the sixty-first day, plaintiff obtained a default judgment against them. The order recited that 'defendants and each of them are in default and their default is hereby entered herein and * * * judgment is hereby entered against the defendants and each of them for such amount as the court shall determine upon hearing thereon, and for the costs of this action.'

On February 15, 1973, defendants filed appearances. On February 21, 1973, they filed a motion to set aside the judgment under rule 236, Rules of Civil Procedure. They alleged 'the default occurred because of inadvertence, mistake, excusable neglect and unavoidable casualty in that there was confusion between the date notices were filed with the Commissioner of Public Safety * * * and the date these defendants received actual notice of these proceedings.' They asserted they had a good defense to the action as shown in an answer contemporaneously filed. The motion was not accompanied by affidavit.

It came on for hearing. No evidence was introduced. No record of argument was made. On April 5, 1973, the court entered an order reciting submission of the motion upon oral argument March 26, 1973, finding the motion should be sustained, and setting aside the default...