Kayser v. Occidental Life Insurance Co. of California

1 N.W.2d 720 | Iowa | 1942

This action was commenced at law by Neva Rachel Kayser as the beneficiary of a certain life insurance policy in the amount of $1,000, issued by the Occidental Life Insurance Company of California, to her deceased husband. On the 18th day of November, 1940, after both parties had rested, the court sustained plaintiff's motion for a directed verdict and the jury returned a verdict in pursuance to the court's direction in the amount of $1,050. On the 18th day of November, 1940, the clerk of the District Court of Linn County entered and spread of record in Volume 122, District Court Record, Linn County, Iowa, at page 614, the following:

"Neva Rachel Kayser } } v. } No. 52065 } Occidental Life Insurance } Company of California. }

"Now, to wit, on this 18th day of November, 1940, trial of this cause proceeds to the court and jury, Hon. Chas. J. Haas, presiding Judge and the parties appearing by the same counsel as heretofore. Arguments are made on plaintiff's motion for directed verdict. Plaintiff's substituted motion for directed verdict is sustained and defendant excepts. The jury is instructed to return a verdict for the plaintiff, and returns a verdict as follows, to-wit: * * *"

On the same day the clerk noted the entry of said judgment in his docket and lien index. On the 22d day of November, 1940, an order was entered giving the defendant insurance company fifteen days within which to file motion for new trial. On the 15th day of January, 1941, the Occidental Life Insurance Company of California perfected an appeal from the trial court sustaining plaintiff's motion for a directed verdict and from the judgment entered November 18, 1940. That appeal is known in the record as the first appeal and an opinion by this court was handed down and is set out in 231 Iowa 620, 1 N.W.2d 715. On the 22d day of May, 1941, it is the claim of the insurance company that the attorneys representing the plaintiff convinced the clerk of the District Court of Linn County that the entry of November 18, 1940, was not a judgment entry and persuaded him to on that day enter a new judgment entry. It is the claim of the defendant and the attorneys that represent it that it had no notice or knowledge of the entry of the new alleged judgment until October 2, 1941, and immediately thereafter the insurance company through its attorneys filed a motion, petition and application to expunge the entry made by the clerk on May 22, 1941, and to correct the record. There was a hearing upon this motion, petition and application and the lower court denied same. The insurance company has appealed.

Due to the opinion filed by this court in what is known as the first appeal (see 231 Iowa 620, 1 N.W.2d 715), the issues in this appeal (known as the second appeal) have become moot and it necessarily follows that this case must be, and it is, dismissed. — Dismissed.

BLISS, C.J., and OLIVER, MILLER, WENNERSTRUM, HALE, and GARFIELD, JJ., concur.