Wederath v. Brant

food, clothing, sary or shelter ” 129-30, for such child.’ 457 Pa. added). (emphasis any

A.2d at 892

event, overwhelming weight judi- involving paren- crime

cial decisions is to the effect

tal abandonment of children per- the element of

that “abandon” includes

manency. Assembly sec-

When our General enacted provided paragraph 2 that

tion 726.6 it parent when a

the crime committed a child to fend for himself or

“abandons” general

herself. In view of the under-

standing long line of of that term

decisions, legislature we think the used the permanency.

term in its usual sense of wary equating

are the more the term “temporarily neglects”

“abandons” be-

cause of the rule that criminal statutes are enlarged by

not to be construction.

The trial court should have dismissed the 726.6(2).

charge founded on section

REVERSED.

Leighton A. WEDERATH and Edna

Wederath, wife, Appellees, his

Larry Brant, BRANT and Anita his

wife, Appellants.

No. 62248.

Supreme Court Iowa.

Jan.

REYNOLDSON, Chief Justice. of granted We further review of a court which a district appeals decision affirmed awarding plaintiffs damagеs court decree after against holding for over defendants termination a farm lease. alleged decision and We vacate the court remand to district for dismissal. were tenants on Defendants one- County Greene under a written farm provisions terminat- year which lease later аssert- ed March 1975. Defendants years for three and ed lease was agreement to the lease did not conform parties. 7, 1975,plaintiffs a February commenced detainer in Carroll entry forcible and County, alleging had breached defendants by failing pay a contract lease rental due No- cash installment $4292.50 18,1975, 1,1974. February defend- vember for a appeared specially ants and moved pursuant County of venue to Greene 616.1, mo- The Code 1973. This section tion 24. Plaintiffs granted February was in failed to be filed to cause as re- County twenty days Greene 175(b). The record quired Iowa R.Civ.P. accomplished not until this was reflects April 24.

Nonetheless, for plaintiffs filed a motion in on summary judgment 4, 1975, April March 1975. filed to the motion and a resistance year. answer the lease was for one denying April answer was amended None directed of these instruments 175(b) court’s violation. attention 14, 1975, J. April ‍​‌‌​​‌‌‌‌​‌​‌​‌​‌‌‌‌​​​​​‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​‌​‍Judge Ed Kеlley plaintiffs’ mo- presiding, sustained tion, ordering plaintiffs “that have removal . . and possession.” [be] appeal on filed notice of Defendants stay of the dis- April applied Horak, Reading, Pauley, Ho- Robert L. stay judgment. granted trict court Jefferson, Mumma, L. & David rak super- post on condition thаt the defendants Whitfield, Musgrave, Selvy, Kel- Phipps, of $20,000 posted bond They sedeas bond. Moines, for ly Eddy, appellants. & Des pend- years each two Carroll, Green, ing. appellees. E. David trial relating we dismissed defendants court error

appeal as moot even under defend- we need nоt consider. Plaintiffs cross-ap- three-year theory plaintiffs pealed, ants’ lease were claiming trial court wrong possession. awarding entitled to damages. double The court appeals affirmed, judge one dissenting. May filed notice of supersedeas claim and lien on the twо I. Issue of district court they bonds. A week later filed a motion Defendants contend the court of adjudication points seeking for of law should have reversed the district court’s they posses- were entitled to establish decree underlying judgment because the for by sion as established the 1975 district court void, being removal was there no action judgment. They asserted that pending when the ruling. court made its was now “the law of the case” as our dis- missal “was the same as an affirmance in This rationale wells from Iowa R.Civ.P. Plaintiffs-appellees.” ap- favor of the This 175: plication was resisted. Plaintiffs аddition- brought wrong 175. Action county. ally during claimed for double rental value (a) brought An wrong coun- alleged period provi- the holdover under the ty may prosecuted there until termina- 562.2, sions of section The Code 1973. tion, defendant, answer, unless a before court, change proper moves for its the

September coun- Judge district ty. Thereupon the court shall order presiding, Albert L. Habhab ruled the 1975 the. change costs, plaintiff’s may summary judgment, by followed our dis- compensation include reasonable for de- appeal, missal the ‍​‌‌​​‌‌‌‌​‌​‌​‌​‌‌‌‌​​​​​‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​‌​‍fixed the expense, including fendant’s trouble and partiеs and foreclosed the issue of the dura- fees, attorney’s attending wrong plaintiffs tion of the lease. The court held county. were entitled to recover the reasonable (b) If all such paid

rental value of the farm from the costs are not within a date 18,1975, time to be April by fixed or the to March papers are proper not filed in the possession voluntarily when sur- order, twenty days within after such by rendered defendants. action shall be dismissed. April filed a limine (Emphasis supplied.) requesting motion the court to limit solely trial evidence to the reasonable rental parties agrеe the action was during peri- wrong value of the farm the holdover county. Plaintiffs do not con- April County papers od. When trial commenced on tend the were Carroll filed twenty days this motion was sustained district in Greene from court, Judge presiding. Connolly granting change Leo F. In the order the venue as 175(b). subsequent required by decree trial court did not The record before willfully holding clearly accomplished award double for us shows this was not over, but did award until two months later. $18,700

reasonable rental value of for the interpreting predecessor Our cases stat- 1,1976, $22,950 crop ending year Mаrch utes to this rule hold that failure to file crop year ending 1977. papers within the time fixed results in dis- appealed, asserting “by operation Defendants trial missal of the action of law.” Co., foreclosing court erred in the issue of lease Halse v. La Crescent Grain (1941); right possession. They duratiоn and Iowa Wennerstrum, underlying summary judgment claim the Chariton Finance Co. 464, 466-67, was void because failure to com- Iowa 284 N.W. 175(b)

ply change (1939); with the rule of venue State ex rel. Havner v. Associated Co., requirements deprived Packing authority Royce, court of to enter N.W. Hall v. judgment. alleged (1881). Defendants оther 9 N.W. 295 1060, 250 N.W. at 133. In Chariton Finance nothing in the record to show There is Co., dis- we annulled a writ of certiorari issue when the raised this granting on an order considering summary district court based trict court venue, where the were County. The in Greene judgment motion county, prior appeal filed in the timely was raised in dеfendants’ issue considering the issue had been judgment. Un- whether' resulting eviction unpublished raised in district court. per curiam fortunately, J., dissenting, we dis- Uhlenhopp, opinion, cases under Iowa. R.Civ.P. Our decided ground moot- appeal on the missed the apposite. those 215.1 are circumstances ness. “that when the time for have held [a arrives, jurisdictional to this the case is dis- Plaintiffs’ defense 215.1] automatically They assert this missed without formal action two-pronged: contention is there- either the court or the clerk. Failure was not raised in trial court and issue save, appeal, and note the dismissal of record does not not be raised fore could Court, second, prior appeal the ease.” Brown v. Iowa District we when ‍​‌‌​​‌‌‌‌​‌​‌​‌​‌‌‌‌​​​​​‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​‌​‍dismissed 457, 1978). (Iowa 272 459 In Werk judgment “stood as a veri- N.W.2d the district court aside, v. judicata Kroneberger, until set meister 262 N.W.2d 295 and would be res ty (Iowa 1978), proceeded trial trial court modified or reversed.” case judgment and in a auto- course, true, of that this con It is matically dismissed under rule 215.1. No venue, troversy originated as a matter been entered order of dismissal had juris is not Venue itself to delete the case from the clerk had failed dictional, as “[a]n We reversed and remanded for docket. prosecuted un wrong county may there judgment petition, dismissing plaintiffs’ termination, defendant, a before unless til stating: answer, proper for its moves do not reach the merits of this contro- 175(a) (in part). county.” Iowa R.Civ.P. we the district court versy because decide Lochner, 710, O’Kelley 259 Iowa also v. See authority to entertain was the. (“Jurisdic 626, (1966) 712, 627 145 N.W.2d following of the case under suit venue, tion, refers to the as contrasted with 215.1, Rules of Civil Procedure. Rule an on its power of court to decide issue Id. at 296. Our decisions have treated merits, place refers to thе whereas venue involving rule as 215.1 cases upon should be the cause sued where Eblen, Baty City of the court. tried.”) Hulburd v. 239 (quoting Moines, 825, (1948)); Des 259 Iowa West 33 N.W.2d 827 Iowa 1026, 208, 204, (1966); Ku recognize 147 N.W.2d 210 103-104. We also Iowa R.Civ.P. Suchomel, 1212-13, ordinarily trules v. matter (1966). 141 597 power to hear and determine N.W.2d means the general class to which of the сases light us Analyzing the case before in merely belong, not question in proceedings decisions, conclude the 1975 of the above we at occupying the particular case then proceeding not result did Rohde, 257 Mauer v. of the court. tention there was no action before 1977). (Iowa 495 N.W.2d 219: here is Iowa R.Civ.P. court. Pertinent adjudica Every final comply “Judgment defined. Although with the failure parties in an any tion of the matter 175(b) may not invoke a sup (Emphasis judgment.” action is a in the traditional situation then, Ordinarily, must sense, plied.) in such cases trial court have held Chapter on an action. Cf. аnything to do be foundationed authority power no or had Halse, (“Offer, Judg to Confess the case. The Code other than to dismiss 204; ment”). jurisprudence, qua the sine our at at Chariton Iowa N.W.2d formerly original Co., non an action was at N.W. at Finance notice, petition. 376; Co., now is a Iowa R.Civ.P. Packing 216 Iowa at it Associated (“A by filing a in which the question possession, civil action is commenced sole not a court.”). holding A claim for petition with the case which over. Buechele, See State ex rel. Turner v. longer is no an action. has been dismissed (Iowa 1975) (“The test This was the basis of the Hall court’s 1881 [of opinion whether an would be wrote, mootness] decision when it “This omission [to of force and effect as to the underlying timely papers county] file the controversy.”) (emphasis in original). appear- was not cured the defendant’s ance, moving to strike the cause. No Although retrosрect it was un pending, action was because it had been ap fortunate that we did not dismiss the by operation discontinued of law.” 56 Iowa peal because there was no valid (emphasis supplied). 9 N.W. at 296 appeal, which to we now hold our above decision did not resolve the issuе of In the before us there no case term, “judgment” lease nor validate a en petition the court and no action before pending, tered where no action was despite pending in district court after any language procedendo which sub to file the failed sequently City issued. See Lanahan v. twenty days. their It was burden to Angeles, 133-34, Los 14 Cal.2d 92 P.2d carry appropriate procedural steps out the (1939); 5 Appeal C.J.S. & keep Nothing the action alive. defend (1958) dismissal, (“On Error at 503 ants could resur did or could do thereafter whole case is out and it cannot Subject given rect it. any pass manner on the merits of the solely by law: It cannot be to court questions action or determine raised in the by O’Kelley, conferred consent. concerning .”).. briefs the merits . . . 145 N.W.2d at 629. “judgment” A void remains sub In these circumstances trial court ject to collateral attack. Peterson v. Eit legal authority judgment had to enter no zen, (Iowa 1970); 173 N.W.2d 850 see pending. when no action was When a court Shaw, ‍​‌‌​​‌‌‌‌​‌​‌​‌​‌‌‌‌​​​​​‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​‌​‍Cal.App. Lewis v. 77 246 P. so, legal authority to acts do it (1926); Mellinger, 86-87 v. 325 Schmehl jurisdiction subject lacks of the matter. In (1937); Pa. 191 A. 63 5 Gardiner, Adoption of 287 N.W.2d re Appeal & Error at 505 C.J.S. & n.60 § Pierce, (Iowa 1980); Pierce see v. (1958) (“The apрeal dismissal of an from a 1980). (Iowa The ef judgment ground void order or on a by fect of action taken a court without validity g., does not involve its [e. mootness] jurisdiction subject of the matter is that the impart judgment does not or order Gardiner, Adoption is of void. re any validity which it would not have had if 287 N.W.2d at 559. aрpeal.”). no Thus our there had been prior ap mootness dismissal of defendants’ II. Effect of our dismissal. peal question did not of trial affirm briefly plaintiffs’ We turn to claim our jurisdiction to enter a court’s prior validated their mootness dismissal pending. where no action was summary “judgment.” attention, But onсe to our outset, plain At the it is that dis question subject jurisdiction of matter purport to determine the missal did not of, disposed “must no matter in what be Because three question of lease duration. stage presented.” manner of form or expired, attempt our “to years had said v. Brotherhood of Walies International appeal Workers, resolve this would amount to an Electrical 252 N.W.2d v. Walles advisory opinion” “any because sub nom. (Iowa), interdicted denied cert. lessees, by granted, asserted if would 98 S.Ct. Corp., 434 U.S. Bechtel Qualley Chrysler have a time now terminated L.Ed.2d 127 see us, (Iowa passed.” Corp., The matter then before on its 261 N.W.2d Credit face, 1978). entry was a forcible and detainer case jurisdiction necessarily decides that it has

Accordingly, the decision court cause.”). matter is remand- by proceeding This Because vacated. instructions to dis- appeal grounds district court with ed to of an on mootness prejudice plain- case without miss the jurisdiction, plainly involves exercise of to plaintiffs. are assessed tiffs. Costs to be implicitly this it had court found unnecessary This it disposition makes prior case. matter De- raised these issues consider the other right to attack the 1975 fendants’ appeal. in this parties depends whether tension between OF COURT OF APPEALS DECISION finality subject matter principles of VACATED; in their favor should be resolved REMANDED TO DISTRICT COURT in these circumstances. WITH INSTRUCTIONS. Defendants did assert the lack McCORMICK, except All Justices concur prior appeal.

J., HARRIS, J., speсially, who concurs Therefore the failure of this ad- part. takes no who majority dress issue in the and dissent- ing opinions cannot attributed them. be McCORMICK, (concurring spe- Justice They the trial court had demonstrated that cially). jurisdiction. clearly acted without More- over, I and result. I concur division surprise that plaintiffs cannot claim still assert this contention. I II is question in division one of issue agree present result with the case merely rather one sub- preclusion than plain- policy favoring finality ject matter The court’s hold- ly against permit- outweighed policy ing that the mootness dismissal of defend- ting beyond to act a court summary ants’ these result is also circumstances. This con- judgment did not validate appli- sistent with the recent statement of question. not answer this If issue does (Second) principles cable Restatement applies, validity judg- preclusion (Tent.Draft Judgments 15(1) 5,1978), No. challеnged. ment cannot 6, 1979). (TentDraft No. § The doctrine a void re- subject to collateral ‍​‌‌​​‌‌‌‌​‌​‌​‌​‌‌‌‌​​​​​‌‌​‌​​‌‌​​​‌‌‌​​​​‌​​‌​‍attack is not mains exception. Lincoln Joint Stock See Brown, Bank v.

Land (1938) (holding that an

278 N.W. prior appellate jurisdiction

exercise sub- was conclusive on issue of case); Re-

ject matter 10(1) (1942) Judgments

statement BLINK, Jr., (“Where par- Appellant, court has William and determines that it has ties matter, subject parties cannot over James A. McNABB and Door Overhead collaterally attack the on the Moines, Company of Des jurisdic- not have ground that the court did Inc., Appellees. matter, unless tion over judica- policy underlying the doctrine res No. 62625. against outweighed policy per- ta Supreme Court of Iowa. beyond jurisdic- mitting the court to act tion.”). Jan. implicit exercise of

An

finding of 21 C.J.S.

20 Am.Jur.2d Courts § (“The (1940) 113 at 174-75

Courts §

Case Details

Case Name: Wederath v. Brant

Court Name: Supreme Court of Iowa

Date Published: Jan 23, 1980

Citation: 287 N.W.2d 591

Docket Number: 62248

Court Abbreviation: Iowa