*1 BAUER, Appellant, Herman COMPANY, Stern,
STERN FINANCE Ben Camenzind, Don W. Sweeten and Arthur Appellees.
No. 53280.
Supreme Court Iowa.
July 24, 1969.
«51 LeGRAND, Justice. relatively sim- controversy involves unnecessarily
ple which have been facts including prolix record complicated and rul- pleadings, motions pages have been omit- Much this could ings. ted. inter- principal dispute
The concerns summary judgment pretation and effect Procedure, rule Rules Civil July extensively amended effective appeals plaintiff The by the trial him entered petition on two dismissing court his plaintiff has refused First, that grounds: to de- important furnish information the hear- deposition or at fendant either in- ing judgment because him; tend incriminate formation would second, is- that there was and that de- as to material fact sue summary judg- was entitled to a fendant these matter law. discuss ment as a We grounds together.
Prior
1967amendment
to the
was available
summary judgment relief
Milling
only
plaintiff.
International
949, 955,
Gisch,
129 N.W.
256 Iowa
Co.
makes
2d
649. The amendment
alike.
applicable
plaintiff and defendant
background
litigation is a
of this
By a
transactions
bitter
series of
one.
pur-
plaintiff
extending
from 1962
cattle,
he
all
chased
head
of which
through
Stern Finance
financed
defendant
Company.
February
or about
On
Sweeten,
em-
Dоn W.
one on Stern’s
to make a
ployees, visited
farm
security.
employer’s
routine check
He
to locate
cows on
was able
immediately sought
plaintiff’s farm. He
place
employ-
out
ment,
inquiry
made
se-
missing
about
Wederath,
Furey
Leighton
A.
James
and,
curity,
plaintiff,
returned to
Carroll,
appellant.
investigation.
farm for further
Six more
Marks,
Moines,
located,
Joseph
ap-
making
animals
then
a total
Des
were
Z.
pellees.
leaving
for.
56 still unaccounted
divulge any
refused
informa-
criminate
Plaintiff
himself. These
dealt
principally
concerning them. Sweeten claims
with the
tion
loсation of the 56
missing
told
Stern Finance
thereupon
they
cattle and how
had been dis-
obliged
posed
by plaintiff.
would be
to declare
same
On the
due,
it was
produce
the loan
certain
entire amount of
refused
books
*3
vari-
requested
the terms of the
entitled
do under
and records
the
during
course of
security
deposition.
ous
instruments.
his
Arthur
made for one
Arrangements were
by plaintiff
I. This exercise
priv-
of his
Nebraska,
Camenzind,
from
a cattle broker
ilege
prin-
is the
self-incrimination
He vis-
livestock.
plaintiff’s
purchase
cipal issue involved. The
Sterns filed
was
farm,
time Sweeten
at which
ited
summаry
motion
judgment
for
on both
negotiations.
part
during
present
plaintiff’s petition.
counts
The motion
by
out a deal
the three worked
Together
alleged
depositions,
pleadings,
“the
an-
cows
purchased the 40
which' Camenzind
to interrogatories
swers
and
on
admissions
a check for
He gave
for
file,
$5150.00.
together with the attached affidavit
it and
endorsed
plaintiff, who
amount to
exhibit,
and
genuine
show
is no
applied on
it
to be
delivered
Sweeten
issue for trial and that the defendant is
Prior
with Stern.
plaintiff’s indebtedness
entitled
judgment
as a matter of law.”
of this transaction
to the consummation
suрport
In
thereof the
set
Sterns
out sub-
would
plaintiff Stern
had assured
Sweeten
stantially the facts above related.
him, although the
deficiency of
claim no
the en-
Attached
cover
motion
the check
not
was the
amount
did
affi-
davit of one Loma Billyard, assistant
tire debt.
sec-
retary of
corporation,
defendant
verifying
sold to
the cattle were
Camen-
Whether
much of the factual matter stated in the
repossessed
first
by plaintiff
were
zind
motion. Subsequently the affidavit of Don
and
Company
Finance
defendant Stern
filed,
W. Sweeten was
further substantiat-
of the areas
then
is one
sold to Camenzind
ing the recitations of the
for
motion
sum-
parties.
disagreement between
mary judgment and setting
out
detail
the manner in which
shortage
of se-
shortly after Camenzind
In
event
curity
discovered,
was
the action taken
cattle,
brought ac-
purchased
corporation
defendant
thereafter, and
Company and
Finance
tion
Stern
the circumstances under
security
which the
counts.
individually
Ben
in seven
Stern
proceeds
was sold and the
applied.
motion,
dismissed
Upon
five
these were
by order of court.
By way of
motion,
resistance
plaintiff filed his affidavit asserting the
remaining
counts one assert-
Of
two
cattle had been taken
from him
Stern
recovery
ed a
because the defend-
Finance Company; that Don W. Sweeten
tortiously
“wrongfully,
illegally,
ants
had
days
for
prior
some
thereto “embar-
plain-
possession
cattle
took
of said
from
rassed
pressured
him”
turning
into
damages for
tiff.” The other claimed
over his cattle to Stern Finance Company;
the ani-
wrongful
disposition
sale and
that he did not sell his
anyone,
cattle to
for im-
alleged
mals
after
seizure
they
but rather
repossessed
were
by the
proper
proceeds
application of
company;
he
finance
that when
endorsed
their sale.
not
the check was
his
and volun-
free
act,
Company
tary
pressure,
Defendants Stern Finance
but was the result of
deposition,
practiced by
Ben
dur-
Stern took
threat and coercion
the said
ing
Arthur
approximately
Camenzind on behalf of and
as
defendant;
representative
occasions refused to answer
he felt
“defeated,
pur-
in-
thereby
strong-armed
tend to
and unable to
interrogatories,
depositions,
his
matter”;
answers
my
will in
sue
own
testimony.
affidavits,
further
When
oral
Finance
account with Stern
is made
motiоn
that Stern
delinquent; and
for
rule,
supported
provided
in this
credits
proper
him
give
Company failed to
un-
adverse
the mere
not rest
premiums
refunds, insurance
pleading,
hut
allegations
denials
earned interest.
response,
or as
otherwise
affidavits
in the affi-
allegations
other
There are
rule,
provided
spe-
in this
must set forth
its
show
davit
these are sufficient
but
showing
that there is a
cific facts
general tenor.
respond,
isstce
so
he does not
trial.
If
judgment,
shall
appropriate,
part
as fol-
provides
Rule 237 now
entered against
(Emphasis added.)
him.”
*4
lows:
cross-claim
“(b)
“
[*]
For
whom
[*]
is asserted
defending
a
[*]
claim,
[*]
party.
or a
counterclaim,
[*]
declaratory
A
[*]
party
or
are
rule and ours.
eral Rules of Civil
This rule is based on rule
only
minor differences
Procedure
between
of the Fed-
and there
that
any time,
may, at
move
judgment
sought
is
summary
The
all
purpose of
supporting affidavits
with or without
trials. A
judgment
is
avoid useless
rules
to
all
his favor as to
judgment
a
in
able
party with a
be
to
cause should
just
any part thereof.
or
without the
judgment promptly and
obtain
trial,
there
expense
a
is
delay and
where
“(c)
thereon.
proceedings
Motion and
to
decided. Hum
genuine
no
fact issue
days
be filed at least 10
motion shall
Auction,
B &
Inc. v.
H
boldt Livestock
hearing. The
for the
before the time fixed
Co.,
Iоwa, 155
Cattle
N.W.2d
day
hearing
party prior
adverse
to
a motion
ruling
and citations.
In
on
may
judg-
opposing
file
affidavits. The
the court’s function is
judgment,
sought
ment
shall be rendered forthwith
genuine
such a
issue
to determine whether
depositions,
to
pleadings,
if the
answers
exists,
merits of
not
decide the
one
file,
and admissions on
interrogatories,
which does.
affidavits,
any,
together
with
show
any
genuine
that
issue
there is
as to
may
provides
party
a
The rule
that
not
that the
is
moving
material fact and
allegations
“rest
or denials
the mere
as a matter of law.
entitled to a
his
forth spe-
He must
pleading.”
set
summаry judgment,
interlocutory
A
in
genuine
cific
showing
facts
there is
is-
character, may
be rendered
the issue of
one;
say
merely
He
there is
sue.
cannot
although
is
liability
genuine
alone
“by
but it must
appear
affidavits
other-
damages.
issue as to the amount of
wise”
is the case.
this
therein.
opposing
timony;
shall
sonal
papers
is competent
“(e)
would be admissible
((
knowledge,
show
[*]
Form of
Defense
affidavits
Sworn
parts
affirmatively
Jfc
testify
thereof referred
or certified
shall
affidavits-;
required.
n
shall be
to the matters
set forth
[*]
in
Supporting
evidence,
made on
copies
Further
[*]
the affiant
stated
[*]
facts
per-
tes-
all
hearing
granting summary judgment for defend
ants
swers would
refusеd to
out,
Stern was
formation
Stern
It
on the motion. As
refusal was on the
both in
is
supply
tend to
clear the trial court’s
ground
vital
incriminate him.
deposition
and material
already pointed
ground
and Ben
ruling
in
had
an
in
shall
attached
filed
justified
affidavit
thereto or
Plaintiff
insists
re-
permit
may
fusing
protection
therewith. The court
affi-
under the
answer
davits
supplemented
opposed
to be
Amendment Constitution of the United
conceded,
trial
and the
fendant’s failure
deny
is
or refusal
States.
**
*
mean, how-
pleaded
facts
This does
so ruled.
court
[on
rely
ever,
might
on his consti-
answers
plaintiff may
is,
tend to incriminate him]
yet go forward
under
rule
deemed
safeguard
an admission
tutional
thereof,
claim
when that
this application
another
the rule in
his claim
present
to di-
suit
he refuses
does not
depends
deny
on information
defendant
process
who due
(Emphasis
is not
one
law.”
vulge.
added.)
Plaintiff
defendant
rights.
has
Under
237, plaintiff’s
Under rule
failure or re-
which
specific
facts
demand disclosure
fusal to
answer
prevents
material
does not
If
relies on.
existence of
issue
fact
reasons
comply with that rule—for
on those matters and defendant’s affidavit
pre-
thereby
compelling
are
to him.—and
must be taken as true to that extent.
arising,
genuine issue of fact
vents a
adversary
proper
case
entitled
In addition to that cited and discussed in
summary judgment as
those issues.
Society
Amana
Selzer,
supra, there is
also other authority
support
lending
disputes
here
One of
basic
concerns
this conclusion. 6 Moore’s Federal
improper disposition by plaintiff
Prac
tice,
56.15,
section
pages 2281-2286;
security
Frank
cattle covered
certain
instru-
*5
Franklin,
lin v.
442,
365 Mo.
283
by
S.W.2d
ments held
defendant Stern Finance
483, 486;
Annest,
Annest v.
49
concerning
Wash.2d
Company. Facts
this issue are
62,
483,
298
484;
P.2d
Lund,
Lund
vital,
v.
plaintiffs
both
Fla.
to the
of ac-
cause
App., 161
873, 875;
So.2d
Meyer Benelli,
v.
preparation
tion and to
for trial
98,
197 Kan.
415, 418;
415 P.2d
Levine
against
Clearly plain-
those
defending
it.
Bornstein,
161,
13 Misc.2d
174
provisions
237,
tiff has
N.Y.S.2d
violated the
of rule
574, 577, 578; Kisting v. Westchester
particularly
Fire
(e),
subdivision
which states
Co.,
Insurance
(U.S.Dist.Ct,
party “may
a
W.D.
not rest
the mere al-
Wisc).,
141,
290 F.Supp.
149;
legations or denials
his
but
Laverne v.
pleading
* * *
Incorporated Village
Hollow,
of Laurel
specific
must set forth
facts
18
N.Y.2d
272
N.Y.S.2d
showing
219
that there is a
for
N.E.2d
genuine issue
295;
Stockham,
Stockham v.
Fla.,
trial.”
320, 322,
168 S.2d
4
539;
A.L.R.3d
Horn
stein
II. We must
plaintiff’s
now
Illinois Liquor
consider
Control Commis
sion,
argument
that the
412
use of his
Ill.
refusal
tes-
358;
106 N.E.2d
An
tify
notation,
aas
for entering summary
the exercise of his constitutional punish plaintiff for his refusal to answer. self incrimination. It is simply a recognition provisions
of rule 237 that the genuine absence aof issue of that several times held fact—from have justi We whatever cause— fies in appropriate testify in a civil case because cases entry the refusal to of sum mary judgment. testimony might him incriminate reason for such ab incidental; sence that action. be used of the ab fact Society Selzer, 250 Iowa Amana sence is determinative. citations; 388, 389, N.W.2d plaintiff says When Lindeman, being pun- he is 1384, 1396, Allen v. 259 Iowa ished exercising for to remain si- N.W.2d lent, he is overlooking the real matter be- opinion, page In the silence, Selzer at fore us: that justifiable not, Iowa, Re- page prevents of 94 N.W.2d justiciable issue arising said, summary, ports, de- question we “In we hold on the involved. question. preclude we this does
However, from what But it is obvious finding an- II that there plaintiff’s refusal to under was Count already said have repossession 237 in fact a the cattle. under rule be considered swer should di- upon which only as mattеrs it those and that alleges Count II there was de- af- rectly only then the refusal It is bears. fendants sold the cattle to Camenzind but genuine fact of a issue. fects the existence diligent “failed to use reasonable ef- price highest important here because the two forts to obtain the best and This is present animals; petition the cattle plaintiff’s counts com- said were wrongfully disposed pletely agree with defendants and theories. We different I, maliciously plain- but find and with the trial defendants acted court as Count plain- rights disregard tiff trial on Count II. intentional have his should tiff.” He also claims he did not receive entirely III. relies as- I Count rebates, refunds, credit various un- sertion defendant Stern Finance earned interest he entitled to. “wrongfully, tortiously” illegally seized Eliminating question of wrongful cattle. Defendant denies repossession, say seizure the cattle we cannot at all asserts were is- dispute sue of fact remains to the voluntarily to Arthur con- sold cerning repossessed whether the cattle were Camenzind. by plaintiffs; defendants or were sold However, present purposes assuming for nor as whether obtained full repossessed seized the cattle were disputеs. for all credit items he We need Company, defendant Stern not, we, express any opinion nor do to have must show this to recover plaintiff’s right recover on cause been a act. wrongful or tortious But say only set out We action in Count II. hand, prove necessary, facts on the one *6 to that there of fact genuine are issues and, other, was the success- wrongful on and plaintiff's decided refusal re- that justified fully by showing it was are defend spond as heretofore noted does very plaintiff the refuses disclose. facts any way not in these issues. affect has made As record stаnds defendant the the trial court We therefore hold was affidavits, provided as full statement wrong entering summary judgment on plaintiff in rule to meet which refuses part II. that of Count as to the We reverse (e) in the subsection manner and the order remand trial for on merits. the requires. Under such circumstances question seizure of the cattle of whether that So there be no misunderstand- of wrongful presents was no issue ing holding, specifically our we find of fact. affidavits stand uncon- Defendant’s asserting precluded any is entry believe of troverted. We wrongful alleged based repos- claim on the prоper. judgment I was on Count cattle; purposes of for the session and of
trial, established, it shall it taken as however, II, presents should be Finance IV. Count found defendant Stern cattle, entirely issues, asking damages Company repossessed plaintiff’s different wrongful repossession de for conduct and alleged proper of was authorized un- alleged dis seizure in der the after instruments executed security fendants posing accounting plaintiff. for cattle and purchase price. still status two V. We have the other defendants, holding as I to Count and Arthur point out our Don W. Sweeten
We Camenzind, go They cannot forward to decide. were not simply is that wrongful repos- originally proceedings on named in the that action based filed, is it sought bring no fact issue on session was them because by amendment and original Sweeten, service of no- Don W. agent, servant special tice. Each filed a appearance, employee Company of Stern Finance each was Neither sustained. of these de- coming upon premises fendants a party judg- was and asserting and dominion over control ment proceedings, and it therefore does not said cattle selling the same to the de- inure to their benefit. fendant Art Camenzind Ar- also known as thur Camenzind. special appearances
The two present en- tirely first that of Don W. Sweeten. different problems. We consider “WHEREFORE, plaintiff prays as in his [******] original petition.” noted, already
As made Sweeten was not a defendant when this action was started prayer original petition in the July on original 1966. An notice was judgment against the defendants Stern January served on him on 1967. The Stern, Company and Ben at who original notice among things stated other only time were defendants following: whom suit brought. had been con- We are strained petition hold therе was no “ ** * petition that a is now on file personal asking judgment against Don W. * * * petition prays which Sweeten at the time notice was served against you for upon him and time the notice stated “$32,000.00 petition on his first such a cause action was on file. It in- “$26,847.50 teresting second cause of note that action even the amendment “$35,000.00 10, 1966, on his third of December cause makes allegation action “$32,000.00 wrongful Sweeten, on his fourth conduct cause action Mr. “$35,000.00on his fifth cause nor does set out allegations action “$35,000.00 justify on his sixth a judgment against cause of action him. It “35,000.00 recites seventh causе action Stern Finance lowing allegations: set of December Sweeten this amendment makes the fol- as described in tice against him as and which demands the affirmative relief the time notice was served on him “which comports with the challenging [*] If there a íj< out, served petition n Sweeten it must be found in the amendment >f is upon him.” that no 10, shown in the jurisdiction 1966. As to the defendant filed a pleading notice served petition the defendant Sweeten upon Sweeten until original special which amounts of the court on was on file at purported notice above appearance upon him no brief and later this is support to this conclusion. Furthermore service of Company and Ben intended cerning to state a ment of December through Sweeten. We have serious doubts that the amend- filing Ben employee amended tacitly his claim the'actions only Stern took argument of the amendment lends further cause of action It original is more Don Sweeten. admitted plead substituted against when possession *7 10, 1966, Stern. notice was not made almost month after additional facts con- likely their by against a Stern Finance The fact that agent, relies that was intended petition оf the cattle Don W. upon servant in his filed a ais “7. That said cattle “1. That the defendant Don W. Sweeten resident [*] [*] of Polk [*] County, were reduced [*] Iowa [*] * * to the [*] * judgment against Sweeten. original notice being the instrument in which he asks for March 7, 1967, but long after service of the before ruling thereon, possession of the defendant Stern We hold did comply not with Company by and Ben Stern the defendant requiring petition our rule a must be by claims the original notice. method selected him to in the obtain file as stated on ques- jurisdiction over is than troublesome better remains the Camenzind There still by spe- by legislature. raised devised we properly While this is tion whethеr be opin- concede this whether should to hold appearance cial ion, are we must cases nevertheless this con- dismiss. Our decide motion to done pro- troversy harmony, legislature recent on what the hut our said. entirely Gander, Iowa, 154 George v. nouncement provides 617.3 Section that service shall dis- 76, 78, 79, therein cases N.W.2d upon made under circum- non-resident cussed, sufficiently to cover broad appears stances as exist following here in the consideration. question here under manner: Arthur special appearance VI. The different, and less presents process original Camenzind “Service of such no- appearance doubtful, special His problem. duplicate tice shall be made (1) filing but grounds, jurisdictional process copies original raises several of said notice * * * is that which discuss we need secretary one with said of state * * * original of service challenges the method (2) mailing defendant upon mail, him. registered notice or certified a notifica- filing secretary of said with the tion Omaha, * a resident of * is Camenzind state notice was served original Nebraska. personal judg upon there. It asked him We have held on numerous occa claims such him. Camenzind ment legislature sions when the up sets our jurisdiction confer does not service extraordinary jurisdic method securing and we render such courts to state, over tion non-residents agree. must clear complete compliance with procedure by the established statute. per- thought have We Fletcher, Fagan 449, 451, Iowa original notice outside sonal service of 116, 117, citations; N.W.2d Andersen non-resident Iowa state Industries, 911, v. National Presto 257 Iowa jurisdiction conferred no of Iowa state 639, 644; 135 N.W.2d Esterdahl v. judgment would personal enter court to our Wilson, 1199, 1203, 252 Iowa 110 N.W.2d date. late disputed at this not be 241, 243, citations; Bahr, Kraft Allen v. extensively discussed matter 822, 826, Iowa 128 N.W.2d 263. Allen, 298 N.W. Iowa holding to recent For a more A.L.R. 617. comply Plaintiff made no effort to Emery Transportation effect see same provisions pur- of this statute and his Baker, Iowa ported original service of in the state notice 136 N.W.2d of Nebraska insufficient confer re- to hold Camenzind jurisdiction seeks Plaintiff the person over of defendant *8 within committed Camenzind, a tort sponsible for special appear- Arthur whose authority to have courts Iowa properly state. If ance was sustained. alleged answer make Camenzind Upon sub- VII. of the defendants been motion he has wrong, it be because must Stern, compliance Stern Finance the and Ben jurisdiction our jected to Iowa, part. trial so- court assessed as of costs 617.3, of Code section against plaintiff attorney statute, purpose of fee of one long $150.00 arm called attorney in against non- defendants' for reason- favor relief provide to which is expense able incurred them as a result otherwise could who residents however, has of the “bad faith affidavit Plаintiff, resistance and brought to bar. provi- filed in resistance to the comply with to effort made no that, judgment.” motion for Not this statute. sions 858 provides, appear
Rule
237(g)
“Should
have been deemed
That
at one time
any
the court at
proper,
opinion
to
satisfaction of
time
it is now
my
but in
humble
any
presented
in
pur-
holdings
of the affidavits
clearly contrary to recent
273,
presented
suant
this rule are
in bad faith
Broderick,
to
88 S.
v.
392 U.S.
Gardner
solely
purpose
delay,
1913,
1082; Application
for the
the Ct.
20 L.Ed.2d
1428,
party
Gault,
1, 42-50,
court
order the
shall forthwith
em- of
87 S.Ct.
387 U.S.
ploying
pay
527;
them
1451-1455,
Spevack
to the other
v.
to
L.Ed.2d
18
625,
expenses
Klein,
511,
amount of the reasonable
17 L.Ed
385 U.S.
87 S.Ct.
filing
574;
Jersey,
of the
caused him to
Garrity
affidavits
of New
v. State
.2d
incur,
fees,
562;
including
attorney’s
616,
493,
reasonable
L.Ed.2d
17
385 U.S.
87 S.Ct.
any
1,
1489,
and
offending party
attorney may
Malloy
Hogan,
U.S.
84 S.Ct.
378
adjudged guilty
contempt.”
653;
Murphy
12
Waterfront
L.Ed.2d
and
1594,
52,
12
Commission,
84 S.Ct.
378 U.S.
In
holding
view of our
under Division IV
v. United
also Hoffman
L.Ed.2d 678. See
part
we hold this was error
and
814,
States,
L.Ed.
341
95
U.S.
71 S.Ct.
decree is reversed.
VIII. We have considered all matters
cases reveals
An
these
examination of
by plaintiff’s appeal. Except
raised
al-
as
applicable
today
Fifth Amendment
ready noted we find
in
no merit
them.
proceeding, be it
any
to
federal or state
criminal,
administrative,
in-
judicial,
civil
in part,
part,
Affirmed
in
and
reversed
nature,
accusatory
in
vestigatory, or
remanded.
protec-
the mandated
must be held
afford
penalty.
tion without
All
except
concur
RAWLINGS
Justices
declared,
Spe
the court
in
In this vein
BECKER,
JJ., who dissent.
Klein, supra, at
vack v.
859 answer, ignominy, compelled Malloy he is not to in said we at 1233. What 85 S.Ct. except provided.” the as otherwise of broad is in the tradition and Griffin at least privilege protection given But the case at in bar did 616, States, U.S. 116 Boyd v. United since waive ma- privilege. Futhermore the 746, 534-535, 29 L.Ed. 634-635, 6 S.Ct. jority refers no statute to rule which and books compulsory production where would have coextensive afforded sought to be goods the owner papers of immunity any consequences from criminal compelling him be held forfeited he answered the had asked himself. against a witness be him, and find none. I “ thing the obnoxious may that it is ‘It be Most assuredly threatened loss form; hut repulsive and least in its mildest right to proceed with litigation civil practices illegitimate unconstitutional trial merits, of a case on its regardless of namely, way, in get footing their first result, ultimate powerful is a form com- deviations slight approaches and by silent pulsion litigant speak, to make a relin- can procedure. modes legal from quish his constitutional remain the rule adhering to obviated be by speaking provide when .silent he would provisions constitutional a link in the chain might be used to should property person and security of prove criminality. literal close and liberally A construed. It is to me evident here sub- is deprives half of their them of construction j ected costly price to a having exercised depreciation gradual efficacy, leads to his privilege against self-incrimination. inmore sound as it right, if consisted of the duty of courts in It is than substance. it consequence is And that our rights for the constitutional be watchful Rules of permit imposition Civil Procedure stealthy citizen, any against comply sanctions for failure or refusal to U.S., at encroachments thereon.’ they with them. Neither statute nor S.Ct., supplied) (Emphasis at 535.” override, can nullify or transcend consti tutiоnally rights, guaranteed privileges or Broderick, as in Gardner stated And VI, in regard Article See immunities. cit., 1915: supra, 392 U.S. S.Ct. loc. Constitution; United States Iowa Motor privilege “The [Fifth Amendment] Vehicle of Railroad Association Board if circumstances appropriate in be waived Commissioners, 461, 466, 221 207 Iowa N. voluntarily knowingly is waiver 1; W. A.L.R. Constitu C.J.S. compelled regard may be made. Answers tional page 151; Law Am. § immunity is privilege less Jur.2d, Law, 50, page Constitutional section com use federal state 221. testimony in connection fruits pelled or its against prosecution a criminal presented Actually question v. Hitch testifying. pеrson Counselman case penalizing before us is not whether 585-586, 12 S. cock, at supra, 142 U.S. result the rules. authorized reached 1110; Murphy 206-207, at 35 L.Ed. Ct. 195 Rather, it is whether the here sanction Commission, supra, 378 U.S. v. Waterfront applied, approved majority, vio- as at 84 S.Ct. 1609.” lates, fact, if not in effect privilege stand on his Amendment Fifth Selzer, 250 Society Amana also See rights. 94 N.W.2d Iowa majority holding, I submit the errs does, 622.14, code, 1966, prop- Additionally section could sought erly plaintiff upon to be entered the matter “When provides: basis of an exercise of to render witness his constitutional tend elicited public privilege liable, him to criminally expose In self-incrimination. *10 during Superior party when a “takes the 5th” v. support see also Zonver hereof 10; discovery proceedings. Substitu- Cal.Rptr. course of Court, Simkins Cal.App., 76 724; summary judgment Allred tion a motion for Simkins, Fla.App., So.2d effectively elimi- changes the issues and Graves, S.E.2d 261 N.C. 431-433, lodged in the nates much of the 189-190; discretion Witnesses §§ C.J.S. Witnesses, action by rule R.C.P. Such 240-246; Am.Jur., court and 58 pages not be tolerated. page should section plain, Rawlings’ I As makes foregoing dissent Upon the basis Justice consequences asserting 5th Amend- trial on the merits remand for reverse and discovery proceedings rights ment con- plaintiff’s action Stern entire Moore, complicated “stitute'a See Co. Ben Stern. field. Practice, 26.22(5). section I would Federal summary judgment remand reverse the BECKER, (dissenting). Justice procedure 134,R.C. this case for under rule respectfully I dissent. P. and for such other action would therewith. consistent procedures in summary judgment Use of and rule procedures available lieu of the Procedure, seems Iowa Rules Civil adequate deter- prevented an
to me to have refusal
mination whether discovery questions grounds
answer can result
self-incrimination (or procedural mistake
against him. seems part the defendant devise) Schroedl, Tony SCHROEDL Catherine analysis in much to me to make Appellants, premature. Rawlings’ dissent Justice party subject refuses to himself aWhen McTague, V. Leo McTAGUE and Frances has procedures the other side discovery Appellees. remedy. appropriate Rule R.C.P. No. 53281. provides power in the court to con- full appropriate ac- take sider situation and Supreme Iowa. Court of tion. the court authorized Actions July 24, 1969. ordering include 134(b)(2), R.C.P. inquiry be taken subject matters established, prohibiting recalci- to be opposing supporting or
trant defenses, prohibiting
designated claims or evidence, striking of certain
introduction proceedings until
pleadings, staying obeyed, dismissing the action or
order is it, by de-
any part entering judgment
fault. course, things all these must be done
Of
in a manner consistent with constitutional including
mandates Amendments
to the States. Constitution of United procedures contemplated in rule orderly determination
R.C.P. allow
what, anything, can or be done should