157 Iowa 90 | Iowa | 1912
— The policy in suit was issued October
We have very little hesitation in holding that the motion should have been sustained. It is true that the proceedings appear to have been unnecessarily delayed in bringing the controversy to an issue, and if the court had taken heroic measures to clear it from the docket there would be little cause of complaint; but the responsibility for such delay rests in part, at least, upon the defendant, which appears to have exercised a very fertile ingenuity in presenting successive motions which postponed the necessity of an answer. But the question where the responsibility lies for the slow rate of progress is not material here; for defendant did finally answer, and within a week thereafter the plaintiff was dismissed out of court, not because of negligence prior to the answer, but because of its failure to appear for trial. If there was any proper or sufficient excuse for that one failure, then the case should have been reinstated.
While there is no statute expressly providing that cases shall not be peremptorily assigned for trial before issue joined, such is, we think, the reasonable implication. In the first place, the provision for notice of trial by which either party may insist upon the cause being tried, save where cause is shown for granting further time, is applicable only to eases once continued, and in which an answer has been filed. Code, section 3658. In the next place, the authority given the court in section 3659 is to make an assignment of “trial causes,” and it is a. fair construction of the language to say that- a cause is not a “trial cause” until there is an issue presented to be tried by the court or jury. ’
It is unnecessary to dwell further upon the facts,, which are few and undisputed. We hold that the motion made for a vacation of the order of dismissal should have been sustained, and the judgment below must therefore be reversed, and cause remanded for further proceedings not inconsistent with this opinion. — Reversed.