22 Iowa 323 | Iowa | 1867
Lead Opinion
By the Code of 1851, it was enacted (§ 1716): “ If the petition is not filed by the time thus fixed, or if not filed ten days before the first day of the next term, the action will be deemed discontinued, unless good cause be shown for the failure.” Under this section, it has been several times held by this court that if the petition was
The question then is, whether the Code of 1860 is the same in substance in this particular, or different from the Code of 1851. The Code of 1860, like that of 1851, provides that the original notice must inform the defendant that on or before a day named therein, the petition will be filed. The Code of 1860 then provides, in lieu of the section quoted supra (Rev., § 2813): “ If the petition is not filed by the date thus fixed, and ten days before the term, the action will be deemed discontinued.”
The language of this section is different from that of the corresponding section, quoted above from the Code of 1851. This difference of language fairly construed conveys a substantially different meaning. And since the commissioners who prepared the Code of 1860, as well as the legislature which adopted it, had before them the judicial construction of the language of the Code of 1851, as contained in the first three cases above cited, and, in view of such construction selected different language, it is very legitimate to conclude that they intended a change of the rule or law in such cases, and for that reason employed the different words to express it. See Code of 1851, section 1715, and Butcher v. Brand (6 Iowa, 235), construing it; and compare with section 2812, of Code of 1860, and the Bes Momes Bramah of the State Bank v. Van (12 Iowa, 523), and Decatur County v. Clements (18 Id., 536), construing it.
The Code of 1851 required the petition to be filed by the time fixed in the notice, or ten days before the next
The language of the section is reasonably plain and certain, and no prejudice can happen to a plaintiff by requiring him to comply with it. There was, therefore, no error in the ruling of the District Court in discontinuing the action, or in refusing the motion to redocket the cause.
Affirmed.
Dissenting Opinion
dissenting. — The original notice “must inform the defendant that, on or before a date therein named.
In my judgment this holding is at war with all those provisions of our Code of civil practice (to be found on almost every page) which allow amendments, relieve parties as to time and manner of pleading, at the earliest moment possible, from the consequences of mistakes, oversights, accident or misfortunes, and retains their causes upon proper terms as to costs, so long as they hafe an apparent substantial ground ■ for relief. Then, too, it gives but little if any — or if any, an improper effect to the word “ deemed.” The statute is not that the action will thereby, or as a consequence, or from that time, be discontinued. The meaning is that a defendant, or the court if nothing further is done, may conclude or preswne or regard that plaintiff has abandoned his action. Suppose this petition is filed the next day, however, and defendant is at once advised or has immediate knowledge of it, and the most abundant cause is shown for the omission, can the court any longer regard the action discontinued; and should the plaintiff, at the hazard of losing possible securities, and, may be, of being barred of his action by the operation of the statute of limitations, be compelled to commence a new action, when the defendant has possibly been neither surprised nor prejudiced ? This, however, would or might be the result of the foregoing holding.
Now, I concede that, if a defendant should not appear, and the petition is filed after the date fixed in the notice, it would be the duty of the court to refuse a default; for the defendant was not bound to know that it was thus filed. If, however, the plaintiff has shown diligence, and rebuts all presumption of intention to trifle with the court or its powers, then let the cause be continued that defendant may b.e notified, but do not discontinue; for plaintiff shows in such a case affirmatively, that he has not abandoned the action; that it should not be “ deemed disGonúnuedP And so, if defendant should appear and claim anything for such failure, let the cause be continued or otherwise disposed of according as the circumstances and the very right of the matter may dictate. These views are in accordance with the whole spirit of our practice; harmonize with the language of the section under consideration, while those of the majority deny that a party shall be heard, whatever his excuse, and though the defendant has been neither surprised nor injured. For these, reasons, without extending the argument, I do most respectfully dissent from the foregoing opinion.