Lemke v. Albright

HARRIS, Justice.

We affirm a trial court judgment entered in favor of the defendants on their counterclaim for damage to crops. Plaintiff, whose cattle entered defendants’ land, filed the original action which was separately tried. Plaintiff’s original claim is not involved in this appeal. We affirm.

I. The most serious question is a threshold one. Final judgment' was entered June 19, 1984. Notice of appeal was filed August 6,1984, well beyond the thirty days allowed under Iowa rule of appellate procedure 5. Plaintiff, who is the appellant, argues that the time was extended because, on June 29, 1984, she filed a timely motion for new trial in district court. Under rule 5, the filing of such a motion extends the time for notice of appeal until “thirty days after the entry of the ruling on such motion.”

After the motion was filed but before it was ruled upon the plaintiff abandoned it by filing the notice of appeal. See Hulsing v. Iowa National Mutual Insurance Co., 329 N.W.2d 5, 6 (Iowa 1983) (appeal operates as waiver of a pending trial court motion); Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978) (“application for post-trial relief ... waived and abandoned when the moving party files notice of appeal”) (emphasis in original).

Plaintiff explains that she had compelling reasons for appealing. Execution of the judgment was being attempted and she wanted to post a supersedeas bond to stay the proceedings. Hard pressed by the judgment creditor, she apparently did not feel it necessary to seek an immediate ruling on her motion.

A compelling argument can be made that we lack jurisdiction to entertain the appeal. It can be argued that plaintiff, having abandoned her motion, can no longer rely on it to extend her time for appeal beyond the thirty-day period following judgment. On the other hand we can find no gap in plaintiff’s right to appeal. It existed from entry of judgment until it was taken. The crux of the matter is that it was only by perfecting this appeal that the post-trial motion was abandoned. It would be illogical to hold that an appeal was abandoned by being perfected. We believe and hold we have jurisdiction.

II. Questions on the merits are not close. Iowa Code section 188.2 (1985) requires that “[a]ll animals shall be restrained by the owners thereof from running at large.” In Wenndt v. Latare, 200 N.W.2d 862 (Iowa 1972) we interpreted section 188.2 as follows:

[PJroof of the owner’s failure to restrain his animals in violation of section 188.2 ... constitutes prima facie evidence of negligence_ Such prima facie evidence of negligence may be rebutted by evidence the owner exercised reasonable and ordinary care in restraining his animals.

Id. at 868.

It was clearly established here that plaintiff’s animals escaped from her own farm and entered defendants' farm. Contrary to plaintiff’s contention, the trial court, sitting as trier of facts, was entitled to reject plaintiff’s version of the events and find the presumption had not been rebutted.

We also reject other of plaintiff’s assertions, especially that there was not substantial evidence to support the findings of proximate cause and damages.

III. The measure of damages for injury to crops was quoted in Martin v. Jaekel, 188 N.W.2d 331 (Iowa 1971) as follows:

The measure of damages in a case of injury to growing crops is the difference between the value of the crop immediately before and immediately after the injury, to be ascertained by taking the value at maturity which the crop would have had but for the injury and deducting the value which the injured crop actually had at maturity and deducting, further, any reduction in amount and value of labor and expense attributable to the reduced yield.

Id. at 336 (quoting Cross v. Harris, 230 Ore. 398, 406, 370 P.2d 703, 707 (1962)).

Both plaintiff and defendants cite the foregoing as the proper measure but dispute whether the trial court properly applied it. Plaintiff’s complaint is that the comparison was made on similar tracts (the damaged one and a second one) on the same farm during the year of damage. Plaintiff insists the yield on the damaged tract should have been compared with yields on the same tract in prior years.

We see no reason to reject the showing. Defendants carefully equated the two tracts on the basis of size, soil condition, lay of the land, fertilizer, insects, and weeds. It was not error for the trial court to receive this evidence and to fix damages accordingly.

AFFIRMED.

All Justices concur except REYNOLD-SON, C.J., and McGIVERIN, J., who dissent, and LARSON and LAVORATO, JJ., who take no part.