Zimmerman v. Purex Corp.

• Citation: 256 Iowa 190,125 N.W.2d 822
• Decision Date: 14 January 1964
• Docket Number: No. 51210,51210
• Parties: Donald ZIMMERMAN, Administrator of the Estate of Bruce Zimmerman, deceased, Appellee and Cross Appellant, v. PUREX CORPORATION, Ltd., Appellant and Cross Appellee.
• Court: United States State Supreme Court of Iowa

Page 822

125 N.W.2d 822

256 Iowa 190

Donald ZIMMERMAN, Administrator of the Estate of Bruce Zimmerman, deceased, Appellee and Cross Appellant, v. PUREX CORPORATION, Ltd., Appellant and Cross Appellee.

No. 51210.

Supreme Court of Iowa.

Jan. 14, 1964.

Rehearing Denied March 10, 1964.

McDonald, McDonald & Carlin, Davenport, for appellee.

Cook, Blair, Balluff & Nagel, Doerr, Dower & Rehling, Davenport, for appellant.

HAYS, Justice.

Law action for damages for death of plaintiff's decedent due to alleged negligence of the defendant. Just prior to empaneling a jury in the case the trial court, acting under rule 134(d) R.C.P., 58 I.C.A., sustained plaintiff's motion to strike defendant's answer. The court submitted the issue of damages to the jury, granting defendant the right to cross examine. A jury returned a verdict for $9,000.00, actual damages and $50,000.00 exemplary damages. Defendant's motion for a new trial was overruled so far as reinstating its answer and granting a new trial was concerned. It did set aside the award of exemplary damages and ordered a new trial thereon. Both parties have appealed. We shall refer to defendant as the appellant.

The record shows that both petition and answer in the case were on file when plaintiff, as authorized by rule 121 R.C.P., filed interrogatories, eight in number, to be answered by defendant. Objections were filed by defendant and on August 29, 1962, the trial court ordered some of the interrogatories to be answered. It did not set a date within which the answers should be made. December 19, 1962, the case came on for trial. Just prior to empaneling a jury, counsel for plaintiff in the court's chambers and in the presence of the court and counsel for defendant, dictated a motion into the record to strike defendant's answer and for a default judgment due to the failure of the defendant to answer the said interrogatories. Over defendant's strenuous objections, the motion was sustained as to striking the answer, and the trial proceeded as above stated. As we view this appeal the entire controversy revolves about the sustaining of the motion to strike the answer.

Appellant asserts error in striking the answer under two theories. (1) The motion not being written and no notice having been given appellant thereof no valid motion existed and nothing was before the trial court; (2) An abuse of judicial discretion upon the part of the trial court in sustaining the motion.

I. Appellant argues at length that all motions to a court must be in writing and filed with the clerk. That notice thereof must be given opposing party before the trial court can pass thereon. The question is argued at some length as to whether or not appellant raised this question as to a written motion and notice before the trial court so as to entitle it be argued here. While we argee that there may be some question thereon, we assume the issue to be properly before this court. The trial court held such matters had been waived by counsel.

The interrogatories were filed as authorized by rule 121 R.C.P. The order of the court for answer of interrogatories was made under rule 123 R.C.P. with no time fixed by the court for answering. So far as appears from the record, no request was made for a fixed time for answering. Rule 134(d), under which the trial court acted in sustaining the motion to strike, provides: '* * * (d). If a party * * * fails to file answers to interrogatories submitted under rule 121, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against such party.' (Italics ours.) It is the words 'on motion and notice,' appearing therein, that gives rise to appellant's contention.

Rules 78, 82, 109, 114, 115 and 117, R.C.P., are cited to support the contention that motions must be in writing and some form of notice given before the trial court can act. Generally speaking, we agree with appellant's contention that motions must be in writing and notice thereof given. This prevents the court action ex parte upon such matters. We think, however, that the words in controversy, 'on motion and notice' have no other significance than saying that no action shall be taken thereon ex parte. Rule 117, R.C.P., seems to indicate that motions need not be written if made during the trial. It also follows that under such conditions, the motion being made in the presence of counsel, no further notice is needed. Appellee asserts the motion was made during the trial and apparently so viewed by the trial court and we agree. The matter was property before the court and it had full power to act.

Appellant argues at length that the Iowa rules of procedure are to be construed in the same way as the corresponding federal rules, specifically rule 37(d) which is in part as follows 'If a party * * * fails to serve answers to interrogatories * * * the court on motion and notice may strike out all or any part of any pleading of that party'. (Italics ours.) Appellant then states 'F.R.C.P. 37(d) does, unarguably, require a written motion, together with notice'. In view of F.R.Civ. P. 7(b)(1), which provides 'An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing' (italics ours), we cannot accept appellant's flat statement as to the requirement of rule 37(d). We think in the light of rule 7(b)(1), supra, the words 'on motion and notice' mean no more than that there shall be no ex parte ruling. In this respect we think our rule 117, R.C.P., is similar to F.R.C.P. 7(b)(1). We find no merit in...