Windus v. Great Plains Gas

• Decision Date: 24 July 1962
• Docket Number: No. 50676,50676
• Citation: 116 N.W.2d 410,254 Iowa 114
• Parties: Loren Dale WINDUS, Administrator of the Estate of Shirley Ann Windus, Deceased, 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.
• Court: Iowa Supreme Court

Page 410

116 N.W.2d 410

254 Iowa 114

Loren Dale WINDUS, Administrator of the Estate of Shirley Ann Windus, Deceased, 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.

No. 50676.

Supreme Court of Iowa.

July 24, 1962.

Lane & Waterman, Davenport, for Great Plains Gas, a Division of National Propane Corp. and National Propane Corp.; Elliott, Shuttleworth & Ingersoll, Cedar Rapids, for Fisher Governor Co., a corporation; Hart, Shulman, Phelan, Tucker & Ivie, Iowa City, for Herbert Ivan Wolf and Gladys Wolf, individually and d/b/a Wolf Appliances and Raymond Penderson; and William L. Meardon and Ansel Chapman, Iowa City, for Ruud Mfg. Corp., appellants.

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

SNELL, Justice.

Justiciable problems should be submitted only after careful consideration and preparation, but there must be terminal facilities for even the most intricate lawsuits. The problem before us involves the authority of the court to reinstate a case dismissed for want of prosecution under rule 215.1, Rules of Civil Procedure. To oversimplify somewhat, the question is: 'Do the rules mean what they say?' Unless we are to disregard the rules necessary for the orderly and expeditious disposition of litigation, the answer must be 'yes'. Until the axe fell and the case was dismissed, no one in the case at bar ever seemed to hurry.

Although tedious in review, the chronology of events is important.

Plaintiff is administrator of the estate of his deceased wife.

On August 15, 1957, there was a gas explosion in or in connection with a water heater or bottle gas supply in the home of plaintiff and decedent. Plaintiff says as a result thereof decedent was so injured as to cause her death. Plaintiff claims liability against several defendants, including the manufacturers of equipment and component parts, distributors, vendors, installers and also the distributors and sellers of the bottle gas.

Plaintiff's claim was made in his petition filed August 12, 1959, nearly two years after the explosion. He also filed two companion cases on the same date. Between September 2, 1959, and November 13, 1959, appearances were filed for the several defendants, including a special appearance relating only to the identification of a named defendant and not material here.

On September 30, 1959, there was filed a stipulation providing for the examination of the premises and equipment by the defendants within 30 days and that none of the said defendants need file answer, motion or pleading until after a reasonable period of time following the examination.

On March 5, 1960, March 18, 1960, April 30, 1960, and May 3, 1960, motions to dismiss, to strike and for more specific statement were filed by the various defendants. The motions for more specific statement were sustained in several particulars on May 10, 1960. As far as material here, the motions to dismiss and to strike were overruled.

On September 2, 1960, plaintiff filed amendments to his petition. On November 14, 1960, one amendment was attacked by a motion to strike. The motion was overruled.

On December 8, 1960, some of the defendants propounded ten interrogatories to be answered by plaintiff.

On December 16, 1960, February 15, 1961, and February 17, 1961, answers were filed by three of the defendants.

On September 13, 1961, plaintiff filed an amendment to his petition as to one of the defendants not included in his prior amendments.

On September 13, 1961, plaintiff filed objections to three and answers to seven of the interrogatories previously propounded on December 8, 1960. On September 20, 1961, these objections were attacked by motion to strike. On September 20, 1961, one of the defendants filed a motion for more specific statement.

The motion to strike the objections to interrogatories and the motion for more specific statement above referred to were sustained on October 4, 1961. There is no showing of any effort upon the part of plaintiff to comply with either ruling.

On October 20, 1961, National Propane Corporation, one of the defendants, filed a motion for leave to make Shell Oil Company, Inc., a party to the action based upon the theory of indemnity or contribution but in no way affecting plaintiff's claim against the original defendants. The motion was supported by affidavit of counsel, the form of the original notice to be served and a copy of the cross petition to be filed against Shell Oil Company, Inc. On the same day an order authorizing National Propane Corporation to make Shell Oil Company, Inc., a party to the action was filed.

On the 30th day of January 1961, pursuant to the provisions of sections 684.18 and 684.19, Code of Iowa, I.C.A., and chapter 367, Laws of the Fifty-eighth General Assembly, the supreme court prescribed and reported to the Fifty-ninth General Assembly of the State of Iowa, rules of practice and procedure for proceedings of a civil nature in the courts of this state. These rules, as submitted, appear as chapter 351, Laws of the Fifty-ninth General Assembly.

As shown by chapter 351, Laws of the Fifty-ninth General Assembly, rule No. 215.1, reading as follows, was prescribed:

'215.1 Uniform rule for dismissal for want of prosecution. It is the declared policy that in the exercise of reasonable diligence every civil and special action, except under unusual circumstances, shall be brought to issue and tried within one year from the date it is filed and docketed and in most instances within a shorter time.

'All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at the next term commencing after August 15 of said year. The clerk shall prior to August 15 give notice to counsel of record as provided in rule 82 of:

(a) the docket number,

(b) the names of parties,

(c) counsel appearing,

(d) date of filing petition,

and the notice shall state that such case will be for trial and subject to dismissal if not tried in the next succeeding term pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiff's costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte. This rule shall not apply to cases (a) pending on appeal from a court of record to a higher court or under order of submission to the court; (b) in which proceedings subsequent to judgment or decree are pending; (c) which have been stayed pursuant to the Soldiers and Sailors Civil Relief Act; (d) which have been filed but in which plaintiff has been unable by due diligence to obtain service of original notice; (e) where a party is paying a claim pursuant to written stipulation on file or court order; and (f) awaiting the action of a referee, master or other court appointed officer; provided, however, that a finding as to (a) through (f) is made and entered of record.

'No continuance under this rule shall be by stipulation of parties alone but must be by order of court. Where appropriate the order of continuance shall be to a date or term certain.'

This rule became effective July 4, 1961, and now appears in its regular order in the 1962 Code of Iowa.

Pursuant to this rule the clerk of the district court, in the latter part of July 1961, prepared and gave notice to counsel for plaintiff and defendants, enclosing copy of the rule and listing this case as subject to dismissal thereunder.

Plaintiff took no action to avoid dismissal and made no filing whatsoever relative thereto.

On the 7th day of November 1961, the clerk of the district court entered an order of dismissal pursuant to rule 215.1.

The next day, November 8, 1961, plaintiff filed a motion for reinstatement, urging that the case and companion cases are of unusual circumstances and that because of said unusual circumstances plaintiff had been unable with reasonable diligence to prepare the cause for trial.

On November 9, 1961, plaintiff's motion for reinstatement was set for hearing at 10:00 a. m., on November 17, 1961, and a seven day notice by mail directed.

Special appearances were filed in behalf of Ruud Manufacturing Corporation on November 15, 1961, in behalf of Fisher Governor Company on November 16, 1961, in behalf of defendants Wolf and Penderson on November 16, 1961, and in behalf of Great Plains Gas, a division of National Propane Corporation, and National Propane Corporation on November 17, 1961. All of the special appearances challenged the jurisdiction of the court to entertain a motion to reinstate. In effect the claim of defendants is that the entry of the dismissal for want of prosecution is a final adjudication and that any attempts to set it aside must be brought under rules 252 and 253 of the Iowa Rules of Civil Procedure.

It should be kept in mind that plaintiff had failed to comply with the order of October 4, 1961, requiring answers to interrogatories and had failed to comply with the order of October 4, 1961, sustaining the motion for more specific statement.

Hearing was had with evidence by affidavit by plaintiff's counsel and oral testimony in behalf of the several parties. On December 26, 1961, the court overruled the special appearances and on December 29, 1961, entered an order, judgment and decree sustaining the motion to reinstate and restoring the case to the list of active cases pending in the court and expunging the order of dismissal.

From that part of the trial court's order with which we agree we quote:

'This matter arises on plaintiff's Motion to Reinstate the above cases, which were dismissed for failure to prosecute under the provisions of Rule 215.1 of the Iowa Rules of Civil...