*1 delivery he admitted trial shows whether The real the cocaine. unequivo- testified profit. He
he did so for that he did not. detail and in some
cally delay in failed to show has
Defendant hampered his defense.
any way might who two witnesses
He also claims unavailable because helped him were
have However, of these testi- delay. one not show us does The record before
fied. nor unavailable
the other locate him. Neither by defendant
effort reason to believe any plausible there defendant.
testimony helped would have right in overrul- trial court was
We hold dismissal on this
ing motion for defendant’s
ground. judgment is affirmed.
III.
AFFIRMED.
Sylvia COOK, Appellant, BLUFFS,
CITY OF COUNCIL Iowa Woodbury, Appellees.
Michael
No. 60558.
Supreme Court of Iowa. *2 Abel, Bluffs,
Gordon C. Council for appel- lees.
UHLENHOPP, Justice.
This appeal involves the sufficiency of a letter as notice under 613A.5 of the Code provides: Every person who claims damages any from municipality officer, any em- ployee, or agent a municipality for or death, on account wrongful loss or injury the scope within of section 613A.2 or section 613A.8 or under common law shall commence an action therefor within months, six unless said person shall cause presented to be to the governing body of the municipality within sixty days after alleged wrongful death, loss or injury time, written stating notice place, and circumstances thereof and the compensation amount of or other relief demanded. place Failure to state time or or circumstances or the amount of com- pensation or other relief demanded shall notice; not invalidate providing, the claimant shall furnish full information within days fifteen after demand No municipality. action therefor shall be maintained unless such has been given and unless the action is commenced within years two after such notice.- The time giving for such notice shall include a length time, reasonable exceed ninety during days, which the in- jured is incapacitated by injury from giving such notice. Sylvia
Plaintiff Cook police- claims that Bluffs, City men defendant of Council including defendant Woodbury, Michael subjected her to mistreatment in the home of her mother and herself on October present She commenced the damage action more than six less months but than years two viability thereafter. Hence the depends of her action on whether she Spellman, Spellman, Spell- caused Spellman given written notice to be within 60 man, Spellman days. E. G. Michael Martin is whether a letter Kealhofer, Welsh, Perry, and Riedman & written to a Council Bluffs’ councilman Omaha, Neb., appellant. qualifies for as a notice under 613A.5. summary Diwoky, Donald J. clerk of the court a motion district filed
Defendants notice, alleged attacking County, copies Pottawattamie judgment hearing, considered court held Mr. the trial Gordon C. Abel and the clerk of material filed testimony supreme day, court. On same the motion. Plaintiff sustained parties, secretary so mailed the notices. *3 appealed. supreme Mr. Abel and the clerk of the question we have a At the threshold
I. court received the notices but the clerk of appeal. Plaintiff jurisdiction of the our of district not. court did appeal the of with to file her notice failed 27,1977, plaintiff’s attorney On was April days. Rules court within clerk district the clerk of court was advised that district (the 336, ap- Procedure 335, of Civil Rules appeal. unable to locate the notice of On appear which in the rules are those plicable May 2, 1977, he therefore sent the district 335(a) rele- 1977). states in Rule Code notice, court the the copy clerk a which part: vant 4, clerk placed May received and on file on supreme court must be Appeals to the 1977. after, within, thirty days, and not taken juris- .that the ordered of our order, or judgment entry from the diction, facts present, which these be sub- . decree mitted the appeal. 336(a) Rule states: 82, here is rule That rule Involved R.C.P. than those allowed Appeal other part: states relevant in rule 332 or under rule order [not required. When service (a) Every- perfected by and is taken involved here] by these thing required rules to be filed the clerk the court filing a notice with . . . . . every . written notice and order, or was judgment decree where the parties. shall be served on each of the entered, appellant his signed by the or parties the specify tak- attorney. It shall decree, appeal, judgment, Same: How made.
ing
(b)
and
upon
a
Service
from. The
part
appealed
or
thereof
represented by
attorney
order
party
an
shall be
copy of the notice
serve a
appellant shall
upon
attorney
made
unless service
in the
party
each
or
counsel
on
upon
party
himself
is ordered
82(h).
in rule
prescribed
manner
upon
attorney
upon
court. Service
or
the clerk of the trial
presented
a party
by delivering
shall be made
accompanied by a
filing
shall be
court
copy
by mailing
to him or
it to him at his
prescribed
form
proof of service in the
or,
last known address
if no address is
82(g). Promptly
filing
after
no-
rule
known, by leaving it with the clerk of
clerk
appeal
with the
of the trial
tice
.
court.
.
.
is com-
Service
mail
mail
shall
or deliver
appellant
court
plete
mailing.
...
upon
supreme
court an
to the clerk of
Filing.
(d)
All
papers
peti-
after the
of such notice.
copy
informational
tion required
upon
party
to be served
with the
shall be filed
court either before
sustaining
order
defend-
The trial court’s
judgment
service within a
time there-
summary
reasonable
motion for
ants’
11,
require
March
1977. On
Whenever these rules
fil-
on
after.
made
recorded
8, 1977,
attorney
ing
filing
certain
shall
prepared,
within a
time said
April
plaintiff’s
dated,
signed
timely
a notice
be
if service is made with-
appeal
deemed
filing
with-
completed
directed:
said time and
is
in a
time
reasonable
thereafter.
Abel, City of Council
Gordon C.
TO:
Woodbury
Bluffs and Michael
events,
At
time of these
rules 335 and
Diwoky,
J.
of the District
Donald
Clerk
part
proce-
336 were
of the rules of civil
County.
Court
Pottawattamie
82(a)
dure. Hence rule
covered notices of
appeal
required
notices be
Irene
that such
attorney directed Beth
Plaintiff’s
82(b) required service to be
Dowd,
secretary,
to mail the
served. Rule
opposing attorney. Timely
service
But we
upon
must consider two additional fac-
attorney
upon
opposing
here
tors. One is
plaintiff’s
was made
attorney did
method,
2,
not wait until
approved
May
1977,
mail.
to mail the
clerk;
notice to the district court
his secre-
336(b) required
rule
the notice
But
tary mailed it at the same time she served
actually be filed with the district court
also
attorney
defendants’
mail on April
clerk,
dispense
rule 82 did not
with that
1977. We have no hesitation in saying that
The last sentence of rule
requirement.
had this mailing to the district court clerk
82(d)
filing
however that the
is time-
states
been delivered in usual course of the mail
(as
here)
(a)
timely
it was
ly if
the service
the filing would have been done within a
(b)
filing
completed
within a
reasonable time after
serving,
even if
time thereafter.” Here a no-
“reasonable
the notice had not been received by the
April
tice was mailed to the clerk on
precisely by
clerk
A
but did not reach him.
second
*4
But the notice mailed to the clerk went
him,
which
notice was thereafter mailed
27,
awry.
April
On
plaintiff’s attor-
4,May
on
1977. This latter
reached him
ney
situation,
learned of the
May 2,1977,
on
filing
was the time that
was accom-
date
he mailed another notice
clerk,
to the
filing
within a reasona-
plished. Was
4, 1977,
May
on
the clerk received it.
by
opposing
mail on
time after service
ble
Then the second factor comes into
counsel?
play, the word “reasonable.” In promulgat
following
defini-
approved
This court
82(d)
ing rule
this court did not state that
tion of a “reasonable time” which was of-
filing
had to be done within a specified
by counsel in Williamson Heater Co.
fered
days
number of
after serving. Such re
Whitmer,
1115, 1119,
191 Iowa
183 N.W.
v.
quirements
go
cause cases to
out on the
405: “A ‘reasonable time’ is defined
procedural point
misstep
if a
occurs
as
appellee
being
for
as
‘such time as
counsel
day.
little as a
Zick Haugh, supra.
v.
In
circumstances,
necessary,
is
under the
for a
stead,
provided
this court
some flexibility:
reasonably prudent
diligent
man
do
filing
completed
must be
within “a reasona
conveniently
duty
what the contract or
re-
serving.
ble time” after
“Reasonable” al
done,
quires
having regard
should be
for
lows consideration
all
the existing cir
rights,
possibly
the loss if
cumstances. Williamson Heater
v.
Co.
party affected’
.
.
. .”
the other
Whitmer, supra.
Although
is close and
court
district
clerk recorded
The
line,
case
near the
under the circum
summary judgment order on March
stances here —the mailing of the notice to
1977;
regular 30-day period
hence the
court
district
clerk at the same time as
expired April
1977. Plaintiff’s
appeal
service,
the further mailing to the dis
attorney
served the notice mail on
trict court clerk
plaintiff’s attorney
after
8, 1977,
2, 1977,
May
but he did not until
learned that
the first notice could not be
mail a notice to the district court clerk
fourid,
receiving
and the
of the
actually got
which
to that clerk. That no
days
the clerk 26
serving
after
4, 1977,
May
days
tice arrived on
some 26
—we
plaintiff accomplished
hold that
filing
attorney
after the
served
notice mail
of the notice within a “reasonable” time
opposing
on
counsel.
If this were all of the
serving.
holding
after
In so
we believe we
say
filing
we
not hesitate to
facts
would
ameliorating
rigors
are
some of the
of the
accomplished
was not
within a reasonable
30-day requirement
inflexible
at which rule
serving.
requirements
time after
82(d) was aimed.
jurisdictional
336 are
rules 335 and
Lundberg
v. Lund
compliance
essential.
contrary
note that a
result would be
(Iowa); Zick v.
berg, 169 N.W .2d 815
required
language
present
under
(Iowa);
N.W .2d 836
Brooks
Haugh, 165
rules 5 and 6 of the Rules
Appellate
(Iowa).
Engel,
haveWe walked in. There were seven my the merits then to II. We come mobile home. In the mean time White mother, husband, her Plaintiff, her appeal. my phone rushed over to & was it using a mobile home. lived in her brother my without consent. About that my time job his on October lost Plaintiff’s husband ex-brotherinlaw, daughters sneaked back in until the 14, 1974, come home and did not the bedroom carring and starts some of 17,1974. then came He evening of October My sons clothes out. daughter jumped up clothes, with his and arrived get his the davenport put on & told him to them from then on Perhaps the events brother. they belonged down to her brother. White setting forth a letter can best be related off, asked me to turn the T.V. which I did. together and her mother plaintiff Then he turned my daughter and said to Plain- signed. her mother composed, and arrest, your Woodbury grabbed under her Stark, mother, was the Bernadine tiff’s brutally put threw her on the floor & scrivener, writing her was so but her, on knee in handcuffs her hand-printed the letter plaintiff poor holding They back her down. -had the mailed. The letter which was on to where handcuffs crooked were 24, 1974, addressed to on October mailed cutting her arms. turned and said councilman of the E. as Ronald Cleveland “Please, the handcuffs & let up, undo her It stated: Bluffs. City of Council pregnant. we think she is White said “I Bluffs, la. Co. give don’t if she is if you dam don’t 24, 1974 Oct. *5 keep put you still I’ll under to.” I arrest Cleveland; Mr. my in say had no what so ever own home. lady that called I am Bernadine Stark they night When took her out on a cold she The event my daughter Sylvia Cook. about bra, on, pair no only had a white T-shirt 17th place was on the nite of Oct that took jeans & bear footed. No coat. I was p. My daughter m. & about 9:45 I didn’t know what hap- had in our own home. watching the world series pened my in and her home & neither did D. and his Craig Ex-husband Cook Her neighbors by arresting her. I should have opens my front door brother Mark Cook right been the one to have the to of made knocking letting without walks in on us complaint to whom should be arrested— presents. Her husband us know of there police they not the were called to take Letting 4 her gone days for had been the ex-husband and brotherinlaw out. Af- done where he was. He had this know they they ter her took turned to ex-hus- from the her when he went AWOL' before suggest you band & brotherinlaw & said “I Rucker, Ft. Army yrs ago 2 in March from get go. out of town.” & Let them make her always Ala. she has had to So station, through my police with me. He walks home I and went to the home dressed beating on her when I in girl into the bedroom and starts walked came to the window my daughter Sylvia I tried to & I asked about by hitting her in stomach. Cook. couldn’t, I came to- the said fine stop him but so She and showed me the “$106.00 police help. “Disturbing peace called the arrest sheet for living room and in. I they policemen holloring.” When arrived I Let asked to see the Lieutenant duty. I do not that was on I went in explained One the of White & I then shut the door and the situation to him how all happened, know his name. the ex- stop Woodbury took them to the bedroom to so he calls in that had came back my get my husband & him & his brother out door & told me & also her in the go into the police home. White asked me to back car later that he could but wasn’t room, arrest, going put I did. When I came her down for living resisting police upset. Woodbury it if the whole force of because she was turns to out looked as walls, my come out of me in front of the Lieutenant I Council Bluffs had because except the statement if they got preg- how in I do not know that made she was police I could sue the force & the nant that officer and four people in a space 13 City something happened if to her over the x 14 it only bigger caused a commotion by out brutal treatment. Walks & has another this many being here. arrest form made out. first made I hope this matter is taken care of soon p.m. out about 10:34 2nd about 10:55 by you, hope you can see that I am pm. right about it. I had to call a bondsman the name of you Thank very much, & he wasn’t home so Dar- Donald Gibbons Bernadine Stark ryl Klasek came. The bond is $300.00 808 So. 21st Lot # 8 gave which I him Mr. Klasek $40.00. Bluffs, Council la 51501 Looked at the first arrest form and asked Telephone 323-2579 girl at the what desk meant “Disturbing the Peace holloring, she Mr. Cleveland responded with the following said, girl that made them out didn’t letter: doing,
know what she was so it was left way. He said “I’ve never heard of it.” THE CITY OF BLUFFS, COUNCIL appear Magis- We had to front of the IOWjA morning trate on 18th at 9 From the Office of: pleaded up o’clock & innocent & he has set City Council hearing for the 31st of Oct. at 9 o’clock. November My daughter has been seen two doc- tors about the black and blue marks on her Bernadine Stark arms, armpits, Legs pains, 21st, & severe back 808 South Lot # 8 Woodbury put where his knee in her back & Bluffs, Council Iowa 51501 acted brutal to her. Dear Ms. Stark: Mr. can’t Cleveland still see how this I would like apologize for not getting my can be done without consent of who was back you sooner. arrested, to of supposed been as this was in I have contacted Director, our Public Safety *6 my own home & private property and the Mr. Chappell, Jack and this matter is cur- right police gave has no unless I the consent rently under investigation. I will have to for them to do so. The ex-husband & wait for the results of that investigation brother-in-Law was the ones I wanted ar- give before I can you any answers. appeared rested. After we the next morn- ing, my daughter Sincerely, and had to have the arrest forms mad on her ex-husband for Ronald E. Cleveland battery Assault & tresspassing, & and also COUNCILMAN tresspassing on the ex-brother in-Law for tresspassing in our home. The is whether the letter prepared by the women signed by Ber
Any
right
yell
woman or man has the
to
nadine Stark satisfies
613A.5 in
§
the
sychiatrist
in their own home a doctor or a
present case.
compliance
Substantial
you
will tell
to
with
you
do so if
fell like it let it
the
requirement
notice
of that section is
my daughter
out after
was hit in the stom-
required.
Sneller,
Vermeer v.
ach,
190
by
right
yell.
a man she had a
to
N.W.2d
So
(Iowa) (“We
394
have been
all in all I do believe that all 7
that
liberal in
requiring
not
more than
wrong,
was
was in the
substantial
compli
here
them I
ance with the terms of the
right
protect my
had no
home.
notice statute
My
predecessor
and its
daughter
weapons.
enactments.”).
and I had no
They ac-
The
tually
purpose
requirement
came in and
of the notice
my
took over without
is to en
very illegal
city
consent and made a
able a
investigate
alleged
& brutal
an
incident
my daughter
arrest to
in her own home and while the facts are
Lunday
fresh.
v. Vogel
wrong
let the
go.
mann,
ones
Also
all seven
(Iowa).
791
agent failed to inform his
assumed the
relief demanded.” A notice is not
presented.
of the notice
principal
even defective for failure to state the time
place
or
or circumstances or the amount or
provide
that a
613A.5 does
Section
other relief demanded if such information is
particular way
served in a
or be
notice be
furnished within 15 days of demand —leav-
specified person.
or handed to a
mailed
ing only the statement of the wrongful
the statute the individual shall cause
Under
death, loss, or injury and the
presented
gov
identity
written notice to be
to the
of the
damaged
erning body.
ordinary layman, very
party
parties
To the
as essential to the
likely
an elected councilman is
who
notice originally. Cf. Savory
City
v.
of
city.
quite
Haverhill,
We think it
natu
represents
(“It
87 S.E.2d
Farr v.
McCORMICK, JJ., concur in Division II and
763;
Mount,
N.C.App.
177 S.E.2d
result,
REES, J., MOORE,
J.,
C.
Texarkana,
Penny City
S.W.2d
LeGRAND, JJ.,
and RAWLINGS and
dis-
;
(Tex.Civ.App.); Anno.
personally did not suffice Raymond FROHWEIN, Appellant, municipality. claim notice to defendant
I, too, would affirm. HAESEMEYER, W. L. Administrator of Koehler,
the Estate of Ella W. L. Hae semeyer Buck, Joyce Appellees. REES, (dissenting). Justice No. 60026. from Division II respectfully I dissent and the result. Supreme Court of Iowa. agree I cannot conclusionsof with 1978. letter, treated majority Rehearing Denied June claim, satisfies majority as a notice 613A.5, The I requirements of Code.
agree with contention defendant’s more, less,
letter and no than a was no
complaint misconduct. I find
nothing in the letter to indicate Mrs. Cook claiming, expecting redress for injury way monetary pay-
claimed anything in
ment. Nor is there the letter have
which could or alerted the mu- should
nicipal plaintiff the fact authorities to or in
claiming compensation; any manner city
suggesting the defendant could be ex-
pected require plaintiff to “furnish full “amount compen-
information” as to the
sation or demanded.” other relief Code, 613A.5,
Section defines
minimal the notice of claim essentials of have
to form and context. We refused to
extend the and literal impact meaning true 613A.5, notice, held the and have statutorily prescribed
all of the minimal
content, specifically requirement
statute, precedent and condition to the
maintenance of suit. American In- States City Dubuque,
surance Co. v. N.W.2d (Iowa 1971). accordingly affirm the would trial
court.
MOORE, J.,C. and Le- RAWLINGS
GRAND, JJ., join dissent.