Windus v. Great Plains Gas

• Decision Date: 16 July 1963
• Docket Number: No. 51053,51053
• Parties: Loren Dale WINDUS, Appellee, v. GREAT PLAINS GAS, a division of National Propane Corporation and National Propane Corporation, Fisher Governor Company, a corporation, Herbert Ivan Wolf and Gladys Wolf, individually and d/b/a Wolf Appliances, and Raymond Penderson, and Ruud Manufacturing Corporation, Appellants, Shell Oil Company, Inc., Additional Appellant.
• Court: Iowa Supreme Court

Page 901

122 N.W.2d 901

255 Iowa 587

Loren Dale WINDUS, Appellee, v. GREAT PLAINS GAS, a division of National Propane Corporation and National Propane Corporation, Fisher Governor Company, a corporation, Herbert Ivan Wolf and Gladys Wolf, individually and d/b/a Wolf Appliances, and Raymond Penderson, and Ruud Manufacturing Corporation, Appellants Shell Oil Company, Inc., Additional Appellant.

No. 51053.

Supreme Court of Iowa.

July 16, 1963.

Rehearing Denied Sept. 17, 1963.

Lane & Waterman, Davenport, for Great Plains Gas, a division of Nat. Propane Corp., and Nat. Propane Corp., appellants.

Shuttleworth & Ingersoll, Cedar Rapids, for Fisher Governor Co., a corporation, appellant.

Hart, Shulman, Phelan, Tucker & Ivie, Iowa City, for Herbert Ivan Wolf and Gladys Wolf, individually and d/b/a Wolf Appliances and Raymond Penderson, appellants.

William L. Meardon and Ansel Chapman, Iowa City, for Ruud Mfg. Corp., appellant.

Betty, Neuman, Heninger & McMahon, Davenport, for Shell Oil Co., Inc., appellant.

Messer & Cahill and Jay H. Honohan, Iowa City, for appellee.

THOMPSON, Justice.

This case comes before us for the second time. On the original appeal, we held that the trial court had no power to set aside a judgment of dismissal entered under the provisions of Rule of Civil Procedure 215.1, 58 I.C.A. Thereupon the plaintiff filed his petition to vacate judgment under the provisions of R.C.P. 252 and 253. The trial court granted the petition and set aside the judgment, and we granted leave to appeal. Three cases are involved, all containing the same issues; and by stipulation the ruling herein applies to each of them. The first appeal appears in our records in 254 Iowa--, 116 N.W.2d 410.

The facts adduced upon the motion to reinstate which was involved in the first appeal were by stipulation also made a part of the record in this case. Since the present appeal is in the same case as the first one, we shall not repeat the facts set out in the opinion therein. Briefly, that appeal involved the right of the trial court to set aside upon motion a judgment of dismissal entered under Rule 215.1. The trial court sustained the motion, and we reversed, holding that it had no power so to do. We said, however, that the proceedings which we there ruled upon are not to be confused with an attempt to vacate the judgment under Rules 252 and 253; and that the defendants did not challenge the right of the plaintiff to a hearing under those rules, 'but such admission does not include an admission of plaintiff's right to prevail thereunder.' Windus v. Great Plains Gas, 254 Iowa ----, 116 N.W.2d 410, 415. Following our decision in the cited case the plaintiff, within one year from the date of the entry of the judgment which dismissed his action under Rule 215.1, filed his petition to vacate under Rules 252 and 253. After a hearing the trial court granted the prayer of the petition and we have this appeal.

Rule 252 so far as material here is set out:

'Upon timely petition and notice under rule 253 the court may correct, vacate or modify a final judgment or order, or grant a new trial on any of the following grounds:

'(a) Mistake, neglect or omission of the clerk;

'(b) Irregularity or fraud practiced in obtaining the same;

'(c) * * *

'(d) * * *

'(e) Unavoidable casualty or misfortune preventing the party from prosecuting or defending;

'(f) * * *.' We do not quote other sections of the rule not relied upon by the plaintiff here.

The petition to vacate alleges three grounds for relief: first, 'Mistake of the clerk in that said Rule 215.1 was not applicable to this case due to facts hereafter set out;' second, 'That there was irregularity in the entry of dismissal in that case was not assigned for trial as required by Rule 215.1;' and third, 'There was unavoidable casualty and misfortune which prevented this plaintiff from prosecuting this cause under the provisions of Rule 215.1.' Three situations are then set out which the plaintiff asserts show unavoidable casualty and misfortune. We shall state these later in this opinion. The trial court granted the petition to vacate on all grounds.

I. The first contention, that the clerk was mistaken in applying Rule 215.1 to this case can be shortly answered. We held the rule applicable on the first appeal, and that ruling is now the law of the case. In fact, we could not have made the decision we did if Rule 215.1 had not been applicable. Our holding there necessarily involves the applicability of the rule to the case. Lawson v. Fordyce, 237 Iowa 28, 32-43 inclusive, 21 N.W.2d 69, 73-78, inclusive. There the rule of 'law of the case' is exhaustively analyzed and many cases cited. See also Iowa Development Company v. Iowa State Highway Commission, Iowa, 122 N.W.2d 323. The trial court was in error in sustaining the petition to vacate on this ground.

II. The same holding applies to the second ground asserted in the petition: that there was irregularity in the entry of the judgment of dismissal because the case was not assigned for trial 'as required by Rule 215.1.' We impliedly at least upheld the regularity of the proceedings when we reversed the trial court's ruling setting aside the judgment of dismissal. The regularity of the clerk's procedure in giving notice and entering judgment when the case was not tried at the prescribed term of the court was not challenged and our ruling that the judgment was valid necessarily upheld the regularity of the procedure.

Nor is it made the duty of the clerk, under the rule, to assign the case for trial, or to see that it is tried. In the first opinion, we quoted with approval, saying that it was part of the trial court's order with which we agreed: 'The Court further finds that the above captioned cases were not assigned for trial during the September term of Court nor was any request for their assignment made by any party to this litigation.' In Talbot v. Talbot, Iowa, 122 N.W.2d 456, we said: 'After such notice by the clerk, there is no discretion in the trial court to assign or not assign the case for trial, and unless affirmative action by one or both sides of the litigation is taken, it has no authority to continue the matter on its own motion.' (Italics supplied.)

The clerk has performed his full duty when he gives the notice prescribed by Rule 215.1. It may be the practice in many of the judicial districts to make an assignment of all cases coming under the dismissal rule; but this is not the duty of either the clerk or the trial court. Parties who receive the notice are charged with protecting their rights. They must see that the case is 'assigned and tried', or suffer the consequences of dismissal. They may, of course, file a motion for continuance, but 'No continuance under this rule shall be by stipulation of parties alone but must be by order of court.' It is also provided that 'satisfactory reasons for want of prosecution on grounds for continuance be shown by application and ruling thereon after notice and not ex parte.' Rule 215.1, supra. The rule is meant to expedite litigation, and to make the dismissal practice uniform over the state. Talbot v. Talbot, supra, loc. cit. Iowa, 122 N.W.2d 456. Before the adoption of the rule, each district had its own dismissal rule, and these varied considerably. Lawyers with practices in the several districts of the state were thereby placed under the necessity of watching and complying with differing dismissal rules in each judicial district; a confusing and burdensome situation. Now each attorney knows that the rule is the same state-wide. But he must comply with the rule as written; and he may not expect the clerk of court to see that his case is assigned and tried. That is his duty. Again the court erred in granting the petition to vacate on this ground.

III. Probably the chief reliance of the plaintiff is upon his third ground, which asserted 'unavoidable casualty and misfortune' which prevented him from prosecuting his case. He divides his claim at this point into three grounds which he thinks support his contention. We quote them:

'(a) On the 20th day of October, 1961, an additional defendant, Shell Oil Company, Inc. was impleaded and said defendant was not served until November 3, 1961 and therefore did not appear nor was compelled to appear until after the September term 1961 had expired.

'(b) That on the 3rd day of October, 1961, a conference was held after a hearing on this case between the presiding Judge and three of the attorneys involved and agreed by all present that the said case would not be able to be tried during the September term of 1961.

'(c) That the plaintiff nor his attorneys were not aware of the date of the expiration of the said term and plaintiff's attorney relied upon the fact that same would expire on the 17th day of November.'

Some general rules of procedure must be considered at this point. A petition to vacate a judgment under Rules 252 and 253 is not triable de novo on appeal. If there is conflicting evidence, or if different inferences may reasonably be drawn from the facts shown, the trial court's findings have the effect of a jury verdict. Svoboda v. Svoboda, 245 Iowa 111, 122, 60 N.W.2d 859, 865, 866; Standard Oil Co. v. Marvill, 201 Iowa 614, 616, 617, 206 N.W. 37, 39. It is also settled law that in passing upon such a petition the trial court has a considerable discretion, and we will not reverse unless an abuse is shown. Svoboda v. Svoboda, supra, loc. cit. 245 Iowa 119, 60 N.W.2d 864, and citations. This discretion is not final or conclusive; it must have some support in the record. However, we have said that we will be more reluctant to find an abuse of discretion where the judgment has been set aside than where relief has been denied. Ferris v. Wulf, 216 Iowa 289, 291, 249 N.W. 156, 157.

It is also well settled that no general rule can be laid down which will govern all cases involving motions to set aside defaults or ...