Phelps v. Varbel

Wennerstrum, J.

Plaintiff’s action is one to renew a judgment which originally had been entered on January 12, 1924. Section 11007, 1939 Code, 614.1(7), 1954 Code. Several defenses were made in this subsequent proceeding. The rulings concerning them in connection with preliminary motion, motions during the trial, as well as a directed verdict in favor of the plaintiff at the conclusion of all the evidence, are the bases of the present appeal. The present plaintiff is a claimed assignee and heir of the original judgment holder. The defendants have appealed from the judgment entered against them.

The original action was commenced on October 3, 1922, by W. H. Phelps. An answer was filed on December 19, 1922. On May 23, 1923, the district court entered an order in this case, as follows: “It is ordered that this cause be dismissed for want of prosecution unless trial notice be served at least ten days prior to the next term of this court.” The record shows there was a September term which commenced September 17, 1923. The defendants claim in their answer that by virtue of the order there was a dismissal of the cause and it was omitted from the docket of the court. This latter fact is apparently not denied. It is also shown by the record a trial notice was filed on November 16, 1923. Thereafter a default judgment was entered against the defendants in the original action as heretofore noted. It is the contention of the defendants in the present action that in view of the dismissal of the original action the court was without jurisdiction to enter the 1924 judgment. By reason of our disposition of this appeal in the manner hereinafter set forth we do not deem it necessary to set out and comment on the other issues which were raised during the trial and likewise presented in this appeal.

I. It is the contention of the defendants the order of the district court entered on May 23, 1923, constituted a dismissal of the original plaintiff’s action. It is not claimed by the present plaintiff a trial notice was filed at least ten days before the September 1923 term of the district court, which would be the next term following the entry of the claimed dismissal.

It is our holding the order of May 23, 1923, effectively constituted a dismissal of plaintiff’s action, since no trial notice was filed as provided by the order, and in view of statutory provisions hereinafter mentioned. As we read the order it said the action would stand dismissed if trial notice was not filed within the prescribed time. When no trial notice was so filed the dismissal order became final. 27 C. J. S., Dismissal and Nonsuit, section 74, page 256.

It is apparent the trial court dismissed the original action under the provisions of section 3764, 1897 Code (section 11562, 1924 Code) which provided: “An action may be dismissed, and such dismissal shall be without prejudice to a further action: * * * 5. By the court, for disobedience by the party of an order concerning the pleadings or any proceeding in the action.”

It is contended by the plaintiff the order of the district court of May 23 did not constitute a dismissal but was conditional in nature. We are presented with the question how this contention should have been made and when.

This court in Byington v. Quincy, 61 Iowa 480, 16 N.W. 582, dealt with a situation somewhat similar to the one here involved. In the cited case trial was reached and plaintiff failed to appear. The trial court dismissed the action for want of prosecution. Five days thereafter the plaintiff filed a motion to reinstate the cause upon the docket which motion was sustained. This court approved such procedure. Such a motion could and should have been made in the original case here involved, and thereby, if timely made, raise the question of the effectiveness of the dismissal.

The plaintiff in no manner sought to question the dismissal in the original case. Instead, he filed a trial notice for the December 1923 term of the district court and a default judgment was entered on January 12, 1924. This was done despite the fact the firm of Campbell & Campbell had entered their appearance on December 5, 1922, and were given ten days to plead and an answer was filed on December 19, 1922. It should be here stated W. H. Phelps was not represented in the original action by the counsel now representing the present plaintiff. Whether there was an effective dismissal was not raised until after the present action was instituted. We hold the present plaintiff" cannot in the present action question the effectiveness of the dismissal of the original action in 1923.

II. There was a statutory provision which pertained to the applicable procedure. Section 4093, 1897 Code (section 12791, 1924 Code) is as follows: “Motion to correct mistake or irregularity. Proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining judgment or order, shall be by motion served on the adverse party or his attorney, and within one year; if made to vacate a judgment or order, because of irregularity in obtaining it, such motion must be made on or before the second day of the succeeding term.” (Emphasis' supplied. )

We are here concerned with the question what procedure should have been followed to vacate the order of dismissal or to question the effectiveness of it. Although we are not here dealing with a judgment but an order the case' of Priestman v. Priestman, 103 Iowa 320, 322, 72 N.W. 535, deals with the statute last quoted. It is therein stated: “This action was brought on the fifteenth day of August, 1895. The Code of 1873 provides that proceedings to vacate a judgment because of irregularity in obtaining it must be by motion made on the second day of the next succeeding term. There was a term of the district court held in Page County in January, 1895, and another in April. As no motion was filed as required by the statute, we cannot consider plaintiff’s claim of irregularity in the obtaining of the judgment. * * * The application to vacate on the ground of irregularity cannot be considered, because not made in time.”

The case of Hammon v. Gilson, 227 Iowa 1366, 1374, 291 N.W. 448, 452, deals with and refers to a judgment of dismissal rather than an order of dismissal. However, it referred to the statute last quoted and the statements there set forth are applicable to the situation in the original case. It is there stated:

“The court bad no power to set aside the judgment of dismissal except by following the proceedings required * * *, and particularly by sections 12792, 12793, and 12794 [1939 Code], stating that the proceedings must be commenced within one year after the order or judgment was made, by filing a verified petition setting out the order or judgment, and the facts justifying its vacation, and by bringing the other party into court in the same manner and by the same proceedings, respecting notice and service, as in an ordinary action. Des Moines Union Ry. Co. v. District Court, 170 Iowa 568, 153 N.W. 217; Workman v. District Court, supra.

“The appellee followed no such proceedings. The trial court therefore had no jurisdiction to render and enter the orders [of reinstatement] appealed from, and they are therefore reversed.”

In the original case, with which we are concerned, the proper procedure would have been, “* * * by motion * * * to vacate * * * order because of irregularity in obtaining it * * * on or before the second day of the succeeding term.” This was not done.

III. There having been a dismissal of the original plaintiff’s action a judgment by default thereafter could not be entered. At the time of the original judgment there was no pending action and the court was without jurisdiction to enter a default judgment. As bearing on the question here involved see Kiser v. Crawford, 182 Iowa 1249, 166 N.W. 577; Dallas v. Dallas, 222 Iowa 42, 44, 268 N.W. 516. In order to sustain a judgment subsequent to a dismissal the record must show a vacation of the dismissal. 27 C. J. S., Dismissal and Nonsuit, section 77, page 262.

The dissenting opinion filed herewith comments on the fact reference is made in the majority opinion to certain statutory provisions in effect at the time of the order of dismissal of May 23, 1923. We deem them controlling. It is interesting to note the minority opinion makes no definite reference to section 3764, 1897 Code (section 11562, 1924 Code), dealing with the right of the court to dismiss an action and section 4093, 1897 Code (section 12791, 1924 Code), relating to motion to correct irregularity in obtaining judgment or order. It avoids any comment on the effectiveness of these statutes. The minority opinion apparently seeks to show the necessity of an entry of a judgment of dismissal. However, it should be kept in mind the statute, section 3764, 1897 Code, makes no reference to a judgment of dismissal but only to the court’s right to dismiss.

We consequently hold the trial court was without jurisdiction to enter the judgment of January 12, 1924, and the court in the action to renew the judgment was in error in só holding in ruling on an application for determination of law points and thereafter, following submission of all the evidence in the pending action, in directing a verdict for plaintiff.

The cause is reversed and remanded for entry of a judgment for the defendants. — Reversed and remanded.

ThompsoN, C. J., and Bliss, Smith, Hays, Larson, and PeteRson, JJ., concur. Oliver and Garfield, JJ., dissent.